                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                     September 20, 2005
                                   TENTH CIRCUIT
                                                                        Clerk of Court


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 05-6068
v.
                                              (Western District of Oklahoma)
                                               (D.C. No. CR-04-0097-03-L)
CHRISTOPHER CHARLES
SPINDLER,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this panel has

determined unanimously to grant the parties’ request for a decision on the briefs

without oral argument. Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). This 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       This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant-appellant Christopher Charles Spindler pleaded guilty to being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). As part of

his plea agreement, Spindler stipulated that “during possession of the firearm . . .

he discharged the firearm striking [the victim].” After the sentencing hearing, the

district court concluded that this use of the firearm constituted an aggravated

assault, resulting in an enhancement to Spindler’s offense level under the United

States Sentencing Guidelines (“U.S.S.G.”). See U.S.S.G. §§ 2K2.1(c)(1)(A),

2X1.1, 2A2.2(a) (2003). The district court then sentenced Spindler to eighty-

seven months’ imprisonment, the top of the applicable Guidelines range, and three

years’ supervised release. Despite the waiver of appellate rights contained in his

plea agreement, Spindler now appeals his sentence, “challeng[ing] the [district

court’s] application of Oklahoma’s law of self-defense” as it relates to calculating

his sentence under the Guidelines. Spindler argues that under Oklahoma law his

use of the firearm was legally justified, and thus that the district court erred by

cross-referencing the aggravated assault provision of the Guidelines. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, this court concludes that Spindler’s

appeal is within the scope of an enforceable appellate waiver and must be

dismissed. 1


      1
       The government’s decision not to file a motion to enforce the appellate
waiver and instead argue the issue in its opening brief does not preclude
enforcement of the waiver. United States v. Clayton, 416 F.3d 1236, 1238-39

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      Generally, this court “enforce[s] plea agreements and their concomitant

waivers of appellate rights.” United States v. Hahn, 359 F.3d 1315, 1318 (10th

Cir. 2004) (en banc). A waiver of the right to appeal will be enforced if (1) the

appeal falls within the scope of the waiver, (2) the waiver was knowing and

voluntary, and (3) enforcing the waiver would not result in a miscarriage of

justice. Id. at 1325. A miscarriage of justice occurs when (1) the district court

relied on an impermissible factor, such as race, (2) defense counsel provided

ineffective assistance in connection with negotiation of the waiver, (3) the

sentence exceeds the statutory maximum, or (4) the waiver is otherwise unlawful

and seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id. at 1327. After a review of these considerations, we conclude

that Spindler’s appellate waiver should be enforced.

      Spindler specifically waived his right to appeal, collaterally challenge, or

move to modify “his sentence as imposed by the Court and the manner in which

the sentence is determined, provided the sentence is within or below the

applicable guideline range determined by the Court to apply to this case.”

Spindler reserved only the right to appeal an upward departure or to challenge his

sentence based on changes in the law that are held by the Tenth Circuit or

Supreme Court to have retroactive effect. Neither of these exceptions are



(10th Cir. 2005).

                                          -3-
applicable and there is, therefore, no question that Spindler’s appeal falls within

the scope of the waiver.

      As demonstrated by both the language of the plea agreement stating that the

plea was “knowingly and voluntarily” made and the plea colloquy conducted by

the district court, Spindler’s waiver of his appellate rights was knowing and

voluntary. See id. at 1325.

      Finally, enforcing Spindler’s appellate waiver does not result in a

miscarriage of justice. See id. at 1327. In imposing the sentence, the district

court did not rely on an impermissible factor, nor is there any suggestion of

ineffective assistance of counsel. See id. Spindler was sentenced below the

statutory maximum and within the applicable Guidelines range. 2 Spindler argues,

however, that the district court’s erroneous application of Oklahoma self-defense

law renders the appellate waiver unlawful, and that enforcement of the waiver

would seriously affect the fairness, integrity, or public reputation of judicial

proceedings. Even if we accept as true Spindler’s argument that the district court

erred, his contention does not relate to whether the sentence itself is somehow

“illegal” or whether the alleged error rendered “his appeal waiver itself




      2
        Under 18 U.S.C. § 924(a)(2), the maximum statutory penalty to which
Spindler was subject was ten years and the Guidelines range as calculated by the
district court was seventy to eighty-seven months.

                                          -4-
unenforceable.” United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005);

see also Hahn, 359 F.3d at 1326-27 & n.12.

      Furthermore, Spindler has failed to carry his burden of showing that

enforcement of the waiver seriously affects the fairness, integrity, or public

reputation of judicial proceedings. See Porter, 405 F.3d at 1143. Spindler’s plea

agreement included the proper statutory maximum to which he was subject,

informed him that he was giving up constitutional and appellate rights in

exchange for certain concessions from the government, and explicitly stated that

the sentence would be imposed by the district court under the Guidelines and that

the court had the authority to impose any sentence within the statutory maximum.

See id. at 1145. In addition, the sentence imposed conformed with the terms of

the plea and Spindler’s understanding of the agreement. See id. At the time of

the plea hearing, all parties were aware that Spindler would argue self-defense,

and in his plea agreement Spindler specifically acknowledged that the waiver was

to remain in effect even if the district court overruled his objections. In making

its findings, the district court rejected Spindler’s self-defense argument,

concluding Spindler “certainly had other options rather than to stop and engage in

a shoot-out in this, thereby causing the serious bodily injury to [the victim], and

then became guilty of the aggravated assault.” Accordingly, Spindler’s appellate




                                          -5-
waiver is not “otherwise unlawful” and enforcing the waiver does not seriously

affect the fairness, integrity, or public reputation of judicial proceedings.

      For the foregoing reasons, Spindler’s appeal is DISMISSED.


                                 ENTERED FOR THE COURT



                                 Michael R. Murphy
                                 Circuit Judge




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