                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                        April 30, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                   No. 06-4273
                                                 (D.C. No. 2:06-CR-456-PGC)
    M AR TINIAN O SALAZA R-YA NEZ,                         (D. Utah)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before BR ISC OE, M U RPH Y, and TYM KOVICH, Circuit Judges.




         Defendant M artiniano Salazar-Yanez pled guilty to illegal reentry

following removal in violation of 8 U.S.C. § 1326. In his plea agreement,

defendant stated that he

         knowingly, voluntarily and expressly waive[d his] right to appeal any
         sentence imposed . . . and the manner in which the sentence is
         determined, on any of the grounds set forth in [18 U.S.C. § 3742] or
         on any ground whatever, except . . . [for] a sentence (1) above the


*
      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 This order and judgment is not binding precedent, except under the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.
      maximum penalty provided in the statutes of conviction as set forth
      in paragraph 2 [of the agreement]; (2) an upward departure above the
      high end of the Guideline range determined by the Court to apply to
      [him] and the facts of [his] case; or (3) if the Court fails to apply the
      two-level “fast track” reduction recommended by the government.

M ot. to Enforce, Attach. B (Plea A greement), para. 10, at 3-4. The district court

imposed a sentence of thirty months, at the low end of the advisory guideline

range of thirty to thirty-seven months and well below the twenty-year statutory

maximum recited in the plea agreement.

      Despite the appeal waiver, defendant has filed an appeal claiming that

the district court erred in determining his sentencing guideline range by

characterizing his prior assault conviction as a felony and as a crime of violence.

The government has moved to enforce his appeal waiver under United States v.

Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc). Under Hahn, we will enforce an

appeal waiver if (1) “the disputed appeal falls within the scope of the waiver of

appellate rights”; (2) “the defendant knowingly and voluntarily waived his

appellate rights”; and (3) “enforcing the waiver would [not] result in a

miscarriage of justice.” Id. at 1325. The miscarriage-of-justice prong requires

the defendant to show (a) his sentence relied on an impermissible factor such as

race; (b) ineffective assistance of counsel in connection with the negotiation of

the appeal waiver rendered the waiver invalid; (c) his sentence exceeded the

statutory maximum; or (d) his appeal waiver is otherw ise unlawful. Id. at 1327.




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The government’s motion addresses all of these considerations, explaining why

none of them undermine defendant’s appeal waiver.

      In response, defendant first contends that his appeal does not fall within

the terms of the appeal waiver. As noted, the waiver permits him to appeal a

sentence “(1) above the maximum penalty provided in the statutes of conviction

as set forth in paragraph 2 [of the plea agreement, or] (2) an upward departure

above the high end of the Guideline range determined by the Court to apply to

[defendant] and the facts of [this] case.” Plea Agreement at 3. In paragraph 2 of

the Plea Agreement, defendant stated: “I know that the maximum possible

penalty provided by law for . . . a violation of 8 U.S.C. § 1326 . . . is a term of

imprisonment of up to . . . 20 years . . . .” Id. at 1. Defendant argues that

exception (1) permits him to appeal any sentence imposed above what “should”

be his maximum sentence, because it does not state that he cannot appeal any

sentence greater than the “maximum possible sentence” under § 1326. Resp. Br.

at 5-6. This argument is patently without merit. By its express reference to

paragraph 2 of the Plea Agreement, which lists the maximum possible sentence of

twenty years, the first appeal-waiver exception clearly and unambiguously

permitted defendant to appeal only if the sentence imposed exceeded that

twenty-year maximum possible sentence, which it did not.

      Defendant next claims his appeal is outside the scope of the waiver by

asserting that the reference to the “facts of [his] case” phrase in exception (2)

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permits an appeal if the court incorrectly applies the facts in his case when it

determined his sentence. Again, this argument is patently without merit. The

exception clearly and unambiguously applies only to a sentence imposed above

the guideline range as “determined by the Court.” Plea Agreement at 3. The only

appellate right that defendant retained under this exception was the right to appeal

if the sentencing court departed up from the guideline range, which it did not do.

      Defendant also contends that he did not knowingly and voluntarily enter the

appeal waiver. He first argues the appeal waiver is ambiguous because he

understood it to mean he could appeal any sentence above what the maximum

sentence “should” be if the court properly determined the guideline range.

As we have held, however, this argument is patently without merit under the

unambiguous language of the appeal waiver provision.

      He next contends that he did not knowingly and voluntarily agree to the

appeal waiver because the district court did not adequately explain the terms of

the appeal waiver to him during the colloquy mandated by Rule 11 of the Federal

Rule of Criminal Procedure. Under Rule 11(b)(1)(N) of the Federal Rules of

Criminal Procedure, the district court is obligated to “inform [a] defendant of, and

determine that the defendant understands . . . the terms of any plea-agreement

provision waiving the right to appeal . . . the sentence” before accepting

defendant’s guilty plea. This court has held that “it is always error for a district

court to fail to discuss an appellate waiver provision during a Rule 11 colloquy,

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although not always reversible error.” United States v. Edgar, 348 F.3d 867, 871

(10th Cir. 2003).

      At the Rule 11 colloquy here, the district court asked defendant, “do you

understand that you’ll be waiving all of the rights listed in the plea agreement

because we won’t have a trial in this case,” to which the defendant answered

“yes.” M ot. to Enforce, Attach. C (Plea Hr’g Tr.), at 5. The plea agreement did

include a list of rights that defendant would be waiving by not going to trial,

including the right to appeal. Plea Agreement, paras. 6, 8 & 10, at 2-4. But the

court’s question did not expressly mention the appeal waiver and did not inform

defendant of the terms of the appeal waiver. The district court also referred

defendant to paragraph 13 of the plea agreement which described in general all of

the concessions given by each party, including defendant’s agreement to “waive

[his] right to challenge any legal sentence.” Plea Hr’g, at 5; Plea Agreement, at

4. Defendant agreed to the court’s statement. The district court’s question did

not, however, refer to paragraph 10, which contains the appeal waiver, and did

not inform defendant of the terms of the appeal waiver. These two questions are

the only ones in which the district court said anything to defendant that could be

construed as relating to the appeal waiver.

      The defendant did not object to the court’s failure to describe the terms of

the appeal waiver, however, and we therefore apply a plain error review. Edgar,

348 F.3d at 871. Under plain error analysis, defendant must establish:

                                         -5-
(1) an error, (2) that is plain, and (3) that affects substantial rights. Id. “If all

three conditions are met, an appellate court may then exercise its discretion to

notice a forfeited error, but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (quotations omitted).

Defendant has made no showing that any error by the district court in failing to

inform him of the terms of the appeal waiver affected his substantial rights.

“An error affects substantial rights w here the error was prejudicial, that is, if it

affected the outcome of the district court proceedings.” Id. at 872 (quotation

omitted). “In the context of a plea agreement, an error is prejudicial if the

defendant has shown that he w ould not have pleaded guilty if the district court

had complied with Rule 11(b)(1)(N).” Id. In assessing this, we “may consult the

whole record” and, in particular, the plea agreement and the plea colloquy. Id.

       Based on our review of the record, we conclude that defendant knowingly

and voluntarily waived his right to appeal. First, as we held above, the plea

agreement very clearly and unambiguously states that defendant waives his right

to appeal any sentence unless it is above the twenty-year maximum possible

sentence provided for by § 1326 or it is above the guideline range as determined

by the court. Further, in the plea agreement the defendant stated: “I know I have

a right to ask the Court any questions I wish to ask concerning my rights, or about

these proceedings and the plea.” Plea Agreement at 6. Defendant stated in the

plea agreement that he had discussed it with his attorney as much as he wanted to

                                            -6-
and that he had entered into it knowingly and voluntarily. At the plea colloquy,

the court explained to defendant that the decision as to how to characterize his

prior assault conviction was a sentencing issue that only the court would

determine and only after defendant entered his guilty plea. The court repeatedly

asked defendant if, with that understanding, he still wished to enter his guilty plea

or instead proceed to trial, and the defendant repeatedly told the court that he

understood this and still wished to take advantage of the plea agreement. Plea

Hr’g at 6-10. The court informed defendant that he would not be able to

withdraw his guilty plea if the sentence was higher than his attorney had

estimated or he had hoped for, and defendant told the court that he understood

this. Defendant has not met his burden to present evidence establishing that he

did not understand the appeal waiver, see Edgar, 348 F.3d at 872-73, and we

conclude from the record as a whole that he did enter into the appeal waiver

knowingly and voluntarily.

      Finally, defendant contends that it would be a miscarriage of justice to

enforce the appeal waiver. He argues the sentence was based on an incorrect

application of the guidelines because the court mischaracterized his prior assault

conviction as a crime of violence and a felony, and, therefore, his sentence

violates the law. Such sentencing objections, however, do not establish that

enforcement of the appeal waiver would be unlawful, which is the focus of the

miscarriage-of-justice inquiry. See United States v. Sandoval, 477 F.3d 1204,

                                          -7-
1208 (10th Cir. 2007); Hahn, 359 F.3d at 1329. Unless undercut by an error that

“seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings,” an appeal waiver is enforceable. Id. at 1327 (quotation omitted).

No such error has been presented here.

      The government’s motion is GRANTED and the appeal is DISM ISSED.

The mandate shall issue forthwith.


                                         ENTERED FOR THE COURT
                                         PER CURIAM




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