                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 6 2005
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,
          Plaintiff-Appellee,
 v.                                                     No. 04-7075
 RICHARD DANIEL BENOIT, a/k/a                      (D.C. No. 04-CR-24-P)
 Rocky Benoit,                                          (E.D. Okla.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, Circuit Judges.



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

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

      On February 12, 2004, the grand jury returned a three-count indictment

against Defendant charging him with knowing possession of a firearm by a

previously convicted felon in violation of 18 U.S.C. § 922(g)(1), knowing


      *
       This order and judgment is not binding precedent, except under the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.
possession of a firearm by an unlawful user of a controlled substance in violation

of 18 U.S.C. § 922(g)(3), and knowing and intentional possession of

methamphetamine in violation of 21 U.S.C. § 844. Defendant pled guilty to all

three counts of the indictment.

      At sentencing, the Presentence Report contained the recommendation that

the district court apply § 2K2.1(a)(2) of the United States Sentencing Guidelines

Manual (“Sentencing Guidelines”) because Defendant allegedly had at least two

prior felony convictions related to crimes of violence or drugs. Rec., Vol. IV, at

4.

      Defendant objected to the district court’s application of § 2K2.1(a)(2) as

violating his Sixth Amendment rights as articulated in Blakely v. Washington, ___

U.S. ___, 124 S. Ct. 2531, 2537 (2004). Rec., Vol. III, at 3-4; Vol. IV, at 12-13.

The district court overruled Defendant’s objection. Rec., Vol. III, at 9.

Defendant was subsequently sentenced to seventy-one months’ incarceration on

each firearm charge and to twelve months’ incarceration on the drug charge. The

district court ordered the sentences to run concurrently.

      On appeal, Defendant again contends that the district court’s application of

§ 2K2.1(a)(2) of the Sentencing Guidelines violated his Sixth Amendment rights.

Before we address the merits of Defendant’s appeal, it is necessary to address an

argument made by the government in its brief, namely, that Defendant waived his


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right to appeal his sentence. Paragraph No. 10 of the plea agreement states:

       Defendant expressly waives the right to appeal defendant’s sentence
       on any ground, except to challenge an upward departure from the
       applicable guideline range as determined by the Court. Defendant
       specifically waives any appeal rights conferred by Title 18, United
       States Code, Section 3742, any post-conviction proceedings, and any
       habeas corpus proceedings.

Rec., Vol. I, Tab 15, at 3. In so doing, the government argues that Defendant’s

appeal rights, at least for the issues raised in this appeal, are waived.

       Although our general rule favors enforcing “plea agreements and their

concomitant waivers of appellate rights,” United States v. Hahn, 359 F.3d 1315,

1318 (10th Cir. 2004) (en banc), our analysis requires us to 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 . . . .” 1 Id. at 1325.

       The broad language of Defendant’s waiver, “Defendant expressly waives

the right to appeal defendant’s sentence on any ground, except to challenge an



       1
        We have outlined the following four situations when we will not enforce a
waiver because doing so would result in a miscarriage of justice: “‘[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 (quoting
United States v. Elliott, 264 F.3d 1171, 1173 (10th Cir. 2001)).

                                           -3-
upward departure from the applicable guideline range as determined by the

Court,” Rec., Vol. I, Tab 15, at 3 (emphasis added), clearly demonstrates his

intent to waive all potential issues on appeal except for the one basis specifically

exempted. Because his current argument on appeal does not relate to a challenge

to an upward departure, Defendant’s Blakely 2 argument is within the scope of his

waiver.

      Defendant has not argued that his waiver was not knowingly and

voluntarily given; therefore, we need not address this issue and presume it

admitted. United States v. Anderson, 374 F.3d 955, 958-59 (10th Cir. 2004)

(determining that appellant effectively admitted to knowingly and voluntarily

waiving his appellate rights because he did not contest the issue).

      Finally, the facts of this case do not demonstrate that enforcement of the

waiver will result in a miscarriage of justice. The only plausible basis Defendant

has for demonstrating a miscarriage of justice is that his sentence exceeds the

“statutory maximum” as defined in Blakely and Booker. 3 That argument has been

      2
       Subsequent to the filing of the briefs in this appeal, the Supreme Court
decided United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), which
applied Blakely to the United States Sentencing Guidelines.
      3
        In Blakely v. Washington, the Supreme Court, in analyzing the Washington
State’s sentencing scheme, defined “statutory maximum” as “the maximum
sentence a judge may impose solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” 124 S. Ct. at 2537 (emphasis in original).
Although the decision in Blakely was limited to Washington State’s sentencing
                                                                      (continued...)

                                         -4-
foreclosed by our opinion in United States v. Green, No. 04-5105 (10th Cir.

May 6, 2005), wherein we held that the definition of “statutory maximum” for

purposes of appellate waivers is consistent with its ordinary meaning–“the longest

sentence that the statute punishing a crime permits a court to impose.” Green,

No. 04-5105, slip op. at 24. Defendant does not argue that his sentence exceeds

the maximum authorized by statute.

      Accordingly, we enforce Defendant’s waiver of his appellate rights found

in his plea agreement and DISMISS this appeal.

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




      3
       (...continued)
scheme, the Supreme Court, in reaching its ultimate holding in United States v.
Booker, applied the Blakely definition of “statutory maximum” to the federal
sentencing system. See Booker, 125 S. Ct. at 749.

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