                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS December 27, 2007
                                                                  Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                     Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 07-6219
                                                (D.C. No. 07-cr-00061-HE-1)
    DAMON JERMAINE DAVIS,                              (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before HENRY, LUCERO, and TYMKOVICH, Circuit Judges.



         Defendant Damon Jermaine Davis pleaded guilty, pursuant to a plea

agreement, to a charge of possessing a stolen firearm in violation of 18 U.S.C.

§ 922(j). The district court sentenced Mr. Davis to 120 months’ imprisonment

and three years’ supervised release. This sentence was at the statutory maximum

of 10 years’ imprisonment and one month below the bottom of the 121-to-151



*
      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 This order and judgment is not binding precedent, except under the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.
month advisory guideline range determined by the district court. Mr. Davis

agreed in his plea agreement to waive his right to appeal “his sentence as imposed

by the Court and the manner in which the sentence is determined,” if his sentence

was “within or below the advisory guideline range determined by the Court to

apply to this case.” Mot. to Enforce, Ex. 2 (Plea Agrmt.) at 5. Nevertheless,

Mr. Davis filed an appeal, seeking to appeal his sentence and the manner in which

it was determined by the court. The government has moved to enforce the plea

agreement 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).

      Mr. Davis seeks to claim on appeal that the district court placed undue

emphasis on the advisory sentencing guidelines. He contends that (1) the motion

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to enforce should be denied because he did not contemplate the possibility the

court would give undue influence to the sentencing guidelines and, therefore, his

appeal is outside the scope of the appeal waiver, and (2) his appeal waiver was

not knowing and voluntary. He further contends enforcing the waiver would

result in a miscarriage of justice, arguing the waiver is otherwise unlawful

because (1) the district court accorded more weight to the guidelines than is

procedurally or substantively reasonable, and (2) no defendant can be aware of

district court error until the sentence is imposed.

      This court has previously rejected these same types of attacks on appeal

waivers. Mr. Davis’s plea agreement clearly precludes any appeal of his sentence

“and the manner in which the sentence is determined,” if the sentence imposed is

“within or below the advisory guideline range determined by the Court.” Plea

Agrmt. at 5 (emphasis added). Thus, Mr. Davis’s appeal is precluded by the plain

language of his appeal waiver. See United States v. Sandoval, 477 F.3d 1204,

1206-07 (10th Cir. 2007) (finding claim within scope of appeal waiver and noting

that this court will not hesitate to hold a defendant to the terms of a lawful plea

agreement). Further, we rejected in Hahn, the same knowing-and-voluntary

argument Mr. Davis makes; namely, that a defendant does not knowingly and

voluntarily waive his appellate rights because he does not know in advance what

sentencing errors the court might make. 359 F.3d at 1326; see also Sandoval,

477 F.3d at 1208 (noting that this court has “rejected the notion that a defendant

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must know with specificity the result he forfeits before his waiver is valid”

(quotation omitted)). And in Sandoval, we reiterated our prior holdings that

sentencing errors do not establish that enforcement of the appeal waiver would

be unlawful, under the miscarriage-of-justice inquiry. 477 F.3d at 1208 (“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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