                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                         November 29, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-1268
                                                   (D.C. No. 1:17-CR-00138-RBJ-5)
 TORRENCE TRIPLETT,                                           (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, KELLY, and McHUGH, Circuit Judges.
                  _________________________________

      This matter is before the court on the government’s motion to enforce the

appeal waiver contained in Torrence Triplett’s plea agreement. Exercising

jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal.

                                   BACKGROUND

      Triplett pleaded guilty pursuant to a plea agreement to one count of

distribution, and possession with the intent to distribute, a mixture and substance

containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1). The

agreement contained the following appellate waiver:



      *
         This order and judgment is not binding precedent, except under the doctrines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.
               The defendant is aware that 18 U.S.C. § 3742 affords the right to
       appeal the sentence, including the manner in which that sentence is
       determined. Understanding this and in exchange for the concessions made
       by the Government in this agreement, the defendant knowingly and
       voluntarily waives the right to appeal any matter in connection with this
       prosecution, conviction, or sentence unless it meets one of the following
       criteria: (1) the sentence exceeds the maximum penalty provided in the
       statute of conviction, (2) the sentence exceeds the advisory guideline range
       that applies to a total offense level of 13[,] or (3) the government appeals
       the sentence imposed. If any of these three criteria apply, the defendant
       may appeal on any ground that is properly available in an appeal that
       follows a guilty plea.
Mot. to Enforce, Attach. 1 (Plea Agmt.) at 3.

       At his change of plea hearing, Triplett told the district court that he had

discussed the plea agreement and statement in advance of plea with his attorney, and

he understood both documents. In addition to the waivers in those documents, the

court further explained that Triplett was giving up his right to a jury trial and its

attendant benefits:

              Essentially, 12 citizens . . . are seated as jurors. . . . Your lawyer and
       you would have a right to participate in the selection of the jurors. Then the
       Government presents its evidence to the jury. The Government has the
       burden of proving beyond a reasonable doubt that you did what they accuse
       you of doing. If they can’t prove it, you’re not guilty. You don’t have to
       prove your innocence. The case starts out with a presumption that you are
       innocent. You don’t have to prove anything. It’s the Government’s burden
       and only the Government’s burden.
                That doesn’t mean you can’t participate in the trial if you wish
       to do so. You can present evidence. Your lawyer can object to and
       cross-examine the Government’s evidence. You can testify, if you wish, on
       your own behalf. You have a whole group of rights that goes with the right
       to trial by jury, and it’s all important. Do you understand what I’m saying?
Id., Attach. 2 (Plea Hr’g) at 4-5.




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       The district court also advised Triplett that he was subject to “a prison

sentence of not more than 20 years, a fine of not more than $1 million, and [a term

of] supervised release.” Id. at 7. Triplett affirmed that he was not pressured to enter

the guilty plea and that he also understood the appeal waiver. As such, the court

found “that he is [pleading guilty] voluntarily, knowingly, intelligently.” Id. at 10.

       In his “Statement by Defendant in Advance of Plea of Guilty,” Triplett

acknowledged that by pleading guilty, he was waiving numerous rights including, the

right to “call such witnesses as I desire [at trial], and . . . obtain subpoenas to require

the attendance and testimony of those witnesses,” as well as the right not “to

incriminate myself and . . . not . . . to testify at . . . trial.” Dist. Ct. Dkt. No. 186, at 4.

       Triplett’s attorney did not object to the adequacy of the colloquy under Fed. R.

Crim. P. 11 at the change of plea hearing, nor did he dispute that he discussed with

Triplett both the plea agreement and statement in advance of plea. Later, the district

court sentenced Triplett to 41 months’ imprisonment and imposed a $100 assessment.

       Despite the fact Triplett’s sentence did not fall within any of the exceptions

that would permit an appeal, he has filed a notice of appeal “to proceed with his

appeal of his sentence.” Resp. at 4. He contends that “the main issue at appeal is the

correct calculation of the . . . Sentencing Guidelines by the trial court.” Id. at 1.

According to Triplett, his plea was not knowing and voluntary because the plea

colloquy did not comply with the requirements of Rule 11(b)(1). More specifically,

Triplett contends that the court “failed to inform [him] of his constitutional right to

be protected from compelled self-incrimination, his constitutional right to compel the

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attendance of witnesses and the court’s statutory obligation to impose a special

assessment.” Resp. at 3-4. Alternatively, Triplett argues that enforcement of the

waiver “would result in a miscarriage of justice.” Id. at 4.

                                     DISCUSSION

      In evaluating a motion to enforce, 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.” United States v. Hahn,

359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). Triplett concedes that

the appeal falls within the scope of the appeal waiver.

Knowing and Voluntary

      As to the whether the waiver was knowing and voluntary,

      Hahn instructs us to look to the plea agreement and the explanation the
      district court provided to the defendant. Thus, we ordinarily look to
      (1) whether the language of the plea agreement states that the defendant
      entered the agreement knowingly and voluntarily; and (2) whether the
      district court conducted an adequate [Rule] 11 colloquy.
United States v. Rollings, 751 F.3d 1183, 1188 (10th Cir. 2014) (internal quotation

marks omitted). “[I]f the defendant did not voluntarily enter into the agreement, the

appellate waiver subsumed in the agreement also cannot stand.” Id. at 1189.

      Because Triplett did not object to any deficiencies in the Rule 11 colloquy in

the district court, we “review[] [the] alleged violations of Rule 11(b) . . . under the

exacting plain error standard.” United States v. Carillo, 860 F.3d 1293, 1300

(10th Cir. 2017). Plain error occurs when there is “(1) an error; (2) the error is plain

                                            4
or obvious; (3) the error affects the appellant’s substantial rights (i.e., the error was

prejudicial and affected the outcome of the proceedings); and (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

Where “unpreserved Rule 11(b)(1) errors” are at issue, “an appellant’s substantial

rights are affected only if he can show a reasonable probability that, but for the error,

he would not have entered the plea.” Id. at 1300-01 (internal quotation marks

omitted).

       But Triplett fails to argue plain error. As such, we will not consider his

argument. See, e.g., United States v. Lamirand, 669 F.3d 1091, 1098 n.7 (10th Cir.

2012) (refusing to “definitively opine on the merits” where a defendant “has not

asked us to review his late-blooming argument for plain error”); Richison v. Ernest

Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (holding “the failure to argue for

plain error and its application on appeal . . . surely marks the end of the road for an

argument for reversal not first presented to the district court”).

Miscarriage of Justice

       Regarding the third Hahn factor, we have stated that

       [a]ppellate waivers are subject to certain exceptions, including [1] where
       the district court relied on an impermissible factor such as race, [2] where
       ineffective assistance of counsel in connection with the negotiation of the
       waiver renders the waiver invalid, [3] where the sentence exceeds the
       statutory maximum, or [4] where the waiver is otherwise unlawful.
Hahn, 359 F.3d at 1327 (internal quotation marks omitted).

       Here, Triplett argues that the “trial court first [erred] when it incorrectly

calculated the sentencing guideline calculation and rejected the sentencing guideline

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calculation made by both the . . . Probation Department as well as by Mr. Triplett.”

Resp. at 4-5. This error was compounded by the court’s “mistaken impression that

Mr. Triplett had plead guilty to an offense regarding crack cocaine and not powder

cocaine.” Id. at 6. The sentencing transcript reveals that Triplett raised these

arguments in the district court. However, Triplett’s miscarriage of justice claim fails

because his arguments alleging sentencing error do not establish any of the four

miscarriage-of-justice circumstances. See Hahn, 359 F.3d at 1327 (holding that

“enforcement of an appellate waiver does not result in a miscarriage of justice unless

enforcement would result in one of the four situations enumerated”).

                                   CONCLUSION

      We grant the government’s motion to dismiss this appeal.


                                            Entered for the Court
                                            Per Curiam




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