                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS December 26, 2007
                                                                  Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                     Clerk of Court




    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 07-3157
                                                (D.C. No. 03-CR-40133-JAR)
    LENARD TARKINGTON,                                    (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, O’BRIEN, and HOLMES, Circuit Judges.



         Defendant Lenard Tarkington pleaded guilty, pursuant to a plea agreement,

to three counts of an indictment: armed bank robbery (Count 1), conspiracy to

commit armed robbery (Count 3), and using and brandishing a firearm during and

in relation to a federal crime of violence (Count 4). The district court sentenced

Mr. Tarkington to a total of 191 months’ imprisonment, followed by three years’


*
      This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
supervised release. This sentence was below the statutory maximum for each of

the crimes for which Mr. Tarkington was convicted, and was within the advisory

guideline range determined by the district court. Mr. Tarkington “knowingly and

voluntarily” agreed in his plea agreement to waive his right to appeal his sentence

if it was “within the guideline range determined appropriate by the court.” Mot.

to Enforce, Ex. 2 (Plea Agrmt.) at 10. Nevertheless, Mr. Tarkington filed a notice

of appeal, seeking to challenge his sentence. The government has moved to

enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir.

2004) (en banc) (per curiam). We grant the government’s motion and dismiss the

appeal.

      In Hahn, 359 F.3d at 1325, this court held that “in reviewing appeals

brought after a defendant has entered into an appeal waiver,” this court will

determine “(1) whether the disputed appeal falls within the scope of the waiver of

appellate rights; (2) whether the defendant knowingly and voluntarily waived his

appellate rights; and (3) whether enforcing the waiver would result in a

miscarriage of justice.” A miscarriage of justice will result if (1) “the district

court relied on an impermissible factor such as race”; (2) “ineffective assistance

of counsel in connection with the negotiation of the waiver renders the waiver

invalid”; (3) “the sentence exceeds the statutory maximum”; or (4) “the waiver is

otherwise unlawful.” Id. at 1327 (quotations omitted).




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      Mr. Tarkington contends that enforcing the appeal waiver in his plea

agreement would result in a miscarriage of justice. The district court ordered his

federal sentence to run consecutively to an Oklahoma state sentence imposed on

him. He claims this is a miscarriage of justice, because, “as per the plea

agreement,” his federal sentence was to run concurrently with his state sentence.

Resp. to Mot. to Enforce at 2. He further claims his sentence is a miscarriage of

justice because the district court erred in evaluating the proportionality of his

sentence relative to his co-defendants under the sentencing guidelines.

      Mr. Tarkington’s suggestion that the consecutive sentence is contrary to the

plea agreement is without merit. The government agreed in the plea agreement

that it would have “no objection” to running the sentences for Counts 1 and 3

concurrently with the state sentence, although 18 U.S.C. § 924(c)(1) mandates

that any sentence for Count 4 be served consecutively to any other criminal

sentence. Plea Agrmt. at 6. Mr. Tarkington agreed in the plea agreement,

however, that the sentence would be determined solely by the district court, and

that the United States had made no promise or representation as to what sentence

he would receive. Further, at the Fed. R. Crim P. 11 plea colloquy,

Mr. Tarkington stated under oath that he did understand that the district court was

not bound by any of the government’s recommendations in the plea agreement,

that the court could impose any sentence up to twenty-five years for Count 1, five

years for Count 3, and life imprisonment for Count 4, and that the court could

                                          -3-
order all of his sentences to be served consecutively. Mot. to Enforce, Ex. 3 (Plea

Colloquy) at 6, 17-18.

      In short, the plea agreement did not obligate the district court to impose

any federal sentence concurrent with Mr. Tarkington’s state sentence, and

Mr. Tarkington knew this when he waived his appellate rights. Further, this court

has repeatedly held that alleged sentencing errors, such as Mr. Tarkington’s

consecutive-sentence and disproportion-sentence claims of error, do not establish

that enforcement of the appeal waiver would be unlawful under the

miscarriage-of-justice inquiry. United States v. Sandoval, 477 F.3d 1204, 1208

(10th Cir. 2007) (“Our inquiry is not whether the sentence is unlawful, but

whether the waiver itself is unlawful . . . .”).

      Accordingly, we GRANT the government’s motion to enforce the appeal

waiver in the plea agreement and DISMISS the appeal.


                                         ENTERED FOR THE COURT
                                         PER CURIAM




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