                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     January 3, 2007

                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
                                  PUBLISH

               UNITED STATES COURT OF APPEALS
                        TENTH CIRCUIT


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

       Plaintiff-Appellee,

 v.                                                    No. 06-2009

 M A RTH A E. M O N TA N O ,

       Defendant-Appellant.



                 Appeal from the United States District Court
                       for the District of New M exico
                          (D .C . No. CR-04-1657 JC)


Leon Schydlower of El Paso, Texas, for D efendant-Appellant.

Sasha Siemel, Assistant U.S. Attorney (David C. Iglesias, United States Attorney,
and Laura Fashing, Assistant U.S. Attorney, on the brief), Albuquerque, New
M exico, for Plaintiff-Appellee.


Before O’BRIEN, SE YM OU R, and TYM KOVICH, Circuit Judges.


SE YM O UR, Circuit Judge.
      M artha Elena M ontano appeals the district court’s imposition of a 188-

month sentence for possession of marijuana. Because M s. M ontano waived her

right to appeal the sentence, we dismiss the appeal.



                                       I

      United States Border Patrol agents spotted M s. M ontano driving on a north-

south New M exico highway near the M exican border. After stopping her vehicle,

the agents discovered 249 pounds of marijuana in the back seat. They further

ascertained that M s. M ontano was a citizen of M exico. She was charged with one

count of possession with intent to distribute 100 kilograms or more of marijuana

in violation of 21 U.S.C. §§ 841(a) and 846(b)(1)(B), and one count of

conspiracy to possess and distribute the same in violation of 21 U.S.C. § 846.

      After the district court denied her motion to suppress the contraband, M s.

M ontano signed a plea agreement agreeing to plead guilty to the two drug counts

in exchange for the government’s promise “not to bring additional charges arising

out of the defendant’s conduct now known.” Rec., vol. I, tab 73 at 6-7. In the

written plea agreement, M s. M ontano acknowledged she understood that the

maximum penalty for her crimes was forty years, “that the Sentencing Guidelines

are advisory,” and that the “applicable sentencing guideline range [would be]

determined by the court after resolution of any objections by either party to the

presentence report.” Id. at 2, 3. The government and M s. M ontano stipulated to



                                           -2-
several reductions to her offense level, but the agreement noted that “whether the

Court accepts these stipulations is a matter solely within the discretion of the

Court after it has reviewed the presentence report.” Id. at 4. In addition, in a

section entitled “WAIVER OF A PPEAL RIGHTS,” M s. M ontano acknowledged

she “knowingly waive[d] the right to appeal this conviction and/or any sentence

within the statutory maximum authorized by law . . . except on the issue of

ineffective assistance of counsel.” Id. at 6.

      M s. M ontano also waived her “right to enter [her] plea before a United

States District Judge, and consent[ed] to entering [her] plea, knowingly and

voluntarily before” a magistrate judge. Rec., vol. I, tab 72. At the plea hearing

before the magistrate judge, M s. M ontano acknowledged she had read and

understood every provision of her signed plea agreement. Rec., vol. III at 6. The

magistrate judge advised M s. M ontano, “the most important thing I can emphasize

. . . is the sentence you receive will be up to the judge,” because “[t]he judge still

retains complete authority to sentence you in his or her discretion” Id. at 10-11.

Additionally, the magistrate judge noted that “with respect to this particular plea

agreement, there is waiver of appeal rights,” and cautioned M s. M ontano that

“waivers of appeal are usually upheld, and there is a good chance that whatever

sentence you get from the judge, you’re not going to be allowed to appeal it.” Id.

at 11. The magistrate judge concluded the hearing by “accept[ing] the plea.” Id.

at 15-16.



                                          -3-
      At her sentencing hearing before the district court, M s. M ontano objected

to her classification in the Presentence Report (PSR ) as a career offender. The

court nonetheless adopted the PSR’s assigned offense level of 31, criminal history

category of VI, and guideline imprisonment range of 188 to 235 months in

accordance with the career offender enhancement. The court subsequently

sentenced M s. M ontano to 188 months imprisonment and two years supervised

release. After pronouncing the sentence, the district court “f[ou]nd that pursuant

to the plea agreement [M s. M ontano] has waived her rights to appeal the final

sentence imposed by this Court.” Rec., vol. IV at 5. But the court then stated,

“I’m going to change that part of the plea agreement. You ought to be allowed to

appeal, because that’s a lot of time . . . so I’m going to change that part of your

plea agreement so that you can appeal.” Id.

      On appeal, M s. M ontano contends the district court (a) erred in denying her

suppression motion, (b) erroneously deemed her a career offender for sentencing

purposes, and (c) failed to explain its reasons for imposing the given sentence as

required by 18 U.S.C. § 3553(c) and United States v. Booker, 543 U.S. 220

(2005). The government argues in response that M s. M ontano’s waiver of appeal

precludes our review of her claims and we should therefore dismiss this appeal.



                                        II

      W e must first determine whether M s. M ontano’s plea agreement includes



                                             -4-
an enforceable waiver that compels our dismissal of her underlying claims. See

United States v. Hahn, 359 F.3d 1315, 1329 (10th Cir. 2004) (“If we conclude

that the waiver agreement is enforceable, we will dismiss.”). As M s. M ontano

recognizes, this court has clearly held that a district court’s oral alteration of a

portion of a plea agreement during sentencing does not replace a written provision

in the agreement. See U nited States v. Atterberry, 144 F.3d 1299, 1301 (10th Cir.

1998) (“[S]tatements made by a judge during sentencing concerning the right to

appeal do not act to negate written waivers of that right.”). To circumvent

Atterberry, M s. M ontano maintains the district court rejected her plea agreement

wholesale, thus making the waiver provision and entire agreement a nullity and

permitting her appeal to go forward. This characterization is not borne out by the

facts of the case.

      M s. M ontano waived her right to enter her plea before the district court and

instead consented to appear before a magistrate judge. A magistrate judge has

jurisdiction to conduct a plea hearing and subsequently accept a defendant’s plea

where the defendant consents. See United States v. Ciapponi, 77 F.3d 1247, 1251

(10th Cir. 1996) (“[W]e hold that, with a defendant’s express consent, . . . the

M agistrates Act authorizes a magistrate judge to conduct a Rule 11 felony plea

proceeding.”); United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004)

(“[D]elegating the authority to conduct Rule 11 proceedings to magistrate judges

does not offend the principles of A rticle III.”).



                                           -5-
      Following an extensive discussion regarding the contents and consequences

of her plea agreement, the magistrate judge explicitly accepted that agreement in

full at the plea hearing. M oreover, at M s. M ontano’s sentencing hearing, the

district judge “ f[ou] nd pursuant to the plea agreement the defendant has waived

her rights to appeal,” before attempting to exclude that provision from the

agreement. Rec., vol. IV at 5 (emphasis added). The magistrate judge’s explicit

acceptance of the plea agreement and the district judge’s “findings” as to portions

of the agreement during sentencing demonstrate the plea agreement was accepted

by the court. 1 As noted above, an oral modification of an accepted plea

agreement does not alter the substance of the agreement.     See Atterberry, 144

F.3d at 1301.   Thus, the agreement stands as written and includes the waiver of

M s. M ontano’s right to appeal.

      In the alternative, M s. M ontano asserts this court should abstain from

enforcing appellate waivers that do not limit the waiver’s applicability to




      1
         At M s. M ontano’s sentencing hearing, the district court adopted the
offense level and guidelines range provided by the PSR. The Probation Office’s
PSR calculations specifically accounted for the offense level reductions to which
the parties stipulated in the agreement. As the PSR notes, if M s. M ontano had
been found guilty following a jury trial instead of pleading guilty, she would
have encountered a guidelines range of 262 to 327, far greater than the 188-
month sentence she received following her agreement. The district court’s use of
the plea-cognizant guidelines range presented in the PSR further supports the
conclusion that the district court sentenced M s. M ontano with the belief that the
plea agreement was being enforced.

                                         -6-
sentences that fall within an articulated sentencing range. 2 She argues w e should

adopt and apply the Second Circuit’s rule that, under some circumstances, a

waiver of appeal will not be enforced if the plea agreement sets no expected

guidelines range and results in a sentence greater than anticipated. See United

States v. Rosa, 123 F.3d 94, 100-01 (2d Cir. 1997) (using scrutiny “above and

beyond [that] applied to all pleas” in evaluating waivers not restricted by a given

sentencing range); United States v. Goodman, 165 F.3d 169, 174-75 (2d Cir.

1999) (not enforcing “the broad form of waiver in this case, [and] sever[ing] the

w aiver from the remainder of the plea agreement.”).   However, in this Circuit w e

have consistently and repeatedly held that broad waivers are enforceable even

where they are not contingent on the ultimate sentence falling within an identified

sentencing range. See Hahn, 359 F.3d at 1328-29; Atterberry, 144 F.3d at 1300-

01; United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir. 1998).     As w e

noted in Hahn, the Supreme Court has “rejected any notion that a defendant must

know with specificity the result he forfeits before his waiver is valid.” Hahn, 359

F.3d at 1327 (citing United States v. Ruiz, 536 U.S. 622 (2002)). In accordance

with Ruiz, we concluded that M r. Hahn’s appellate waiver, permitting an appeal

only for those sentences beyond the statutory maximum, was not inherently




      2
       By contrast, M s. M ontano’s waiver applied to all possible sentences
below the statutory maximum. Rec., vol. I, tab 73 at 6.

                                         -7-
“unknowing and involuntary.” 3 Hahn, 359 F.3d at 1327. Under our reasoning in

Hahn, M s. M ontano’s nearly identical appellate waiver is enforceable.

      Because we hold M s. M ontano’s w aiver of her appellate rights is

enforceable, we do not reach her substantive claims. Accordingly, we DISM ISS

the appeal.




      3
        M s. M ontano does not assert that her waiver is unenforceable for failing
to meet the three requirements set forth in United States v. Hahn, 359 F.3d 1315,
1325 (10th Cir. 2004) (“[I]n reviewing appeals brought after a defendant has
entered into an appeal waiver, [we must] 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 w aiver would result in a m iscarriage of justice.”).

                                        -8-
