                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   January 7, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 08-3280
                                               (D.C. No. 5:07-CR-40106-JAR)
    INDELFONSO                                            (D. Kan.)
    VAZQUEZ!MARTINEZ,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


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



         Defendant Indelfonso Vazquez-Martinez pleaded guilty to possession with

intent to distribute a mixture or substance containing a detectable amount of

methamphetamine on five separate occasions, in violation of 21 U.S.C.

§ 841(a)(1). His plea agreement states “defendant knowingly and voluntarily

waives any right to appeal or collaterally attack any matter in connection with


*
      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 This order and judgment is not binding precedent, except under the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.
[his] prosecution, conviction and sentence.” Mot. to Enforce, Attach. 1 (Plea

Agreement) at ¶9. The agreement further states “[b]y entering into this

agreement, the defendant knowingly waives any right to appeal a sentence

imposed which is within the guideline range determined appropriate by the court.”

Id. The district court determined the advisory guideline range was 262 to 327

months and imposed a sentence of 262 months, at the low end of the range.

Defendant has filed an appeal in which he seeks to challenge the district court’s

calculation of his sentence. The government has moved to enforce defendant’s

appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en

banc) (per curiam). We grant the motion and dismiss the appeal.

      Under Hahn, we consider “(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 . . . .” Id. at 1325. Defendant contends

that his appeal falls within an exception to the appellate waiver. Alternatively, he

argues that enforcement of the waiver would result in a miscarriage of justice.

      Defendant’s plea agreement contains the following exception “defendant

waives the right to appeal the sentence imposed in this case except to the extent,

if any, the court departs upwards from the applicable sentencing guideline range

determined by the court.” Plea Agreement at ¶9. It is undisputed that defendant’s

sentence did not involve an upward departure. Defendant argues, however, that

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evidence presented at his sentencing hearing supported a two to four level

reduction from the guideline range determined by the court and that the use of a

higher guideline level is “substantially equivalent to an upward departure.” Resp.

to Mot. to Enforce at 2.

      Defendant’s argument is precluded by the plain language of the plea

agreement. In the waiver provision, he agreed to waive his right to appeal a

sentence that was “within the guideline range determined appropriate by the

court” and the exception applies solely to upward departures from the

“applicable sentencing guideline range determined by the court.” Plea

Agreement at ¶9 (emphasis added). On appeal, he seeks to challenge the district

court’s findings of relevant conduct, which he admits are “part and parcel of the

determination by the court of the guideline range for sentencing.” Resp. to Mot.

to Enforce at 3. Defendant’s appeal is nothing more than a challenge to the

district court’s calculation of the appropriate sentencing guideline range, which

was expressly waived in his plea agreement.

      Defendant’s miscarriage-of-justice argument also fails. He argues that

there were inconsistent findings relating to the amount of methamphetamine that

was attributed to him and that “[t]hese inconsistent findings amount to error that

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

proceedings.” Id. at 4 (quotation omitted). The miscarriage-of-justice exception,

however, looks to whether “the waiver is otherwise unlawful,” Hahn 359 F.3d at

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1327 (quotation omitted and emphasis added), not whether some other aspect of

the proceeding may have involved legal error. Defendant’s argument that his

appeal waiver should be excused due to alleged errors in the relevant conduct

findings does not support the miscarriage-of-justice exception because his claim

only concerns the correctness of his sentence. Because defendant has not asserted

any claim regarding the relevant issue of whether the appeal waiver itself was

unlawful, see United States v. Porter, 405 F.3d 1136, 1144-45 (10th Cir. 2005),

defendant has not shown that enforcement of the waiver would seriously affect

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

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

waiver and DISMISS the appeal. Defendant’s motion to file his response out of

time is GRANTED.



                                        ENTERED FOR THE COURT
                                        PER CURIAM




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