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

                           FOR THE TENTH CIRCUIT                        May 18, 2015

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                       No. 14-6242
                                                 (D.C. No. 5:14-CR-00045-C-1)
DONALD LEWAYNE TUCKER,                                   (W.D. Okla.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, EBEL and PHILLIPS, Circuit Judges.


      Donald LeWayne Tucker pleaded guilty to possession with intent to distribute

twenty-eight or more grams of cocaine base in violation of 21 U.S.C. § 841(a)(1).

The district court sentenced him to 188 months in prison, at the low end of the

guidelines range of 188 to 235 months. Under the terms of his plea agreement,

Mr. Tucker waived his right to appeal any sentence, and the way in which it was

determined, as long as the sentence was within the guidelines range determined to be


*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
appropriate by the court. Nevertheless, Mr. Tucker filed a notice of appeal

concerning his sentence. The government moves to enforce the appeal waiver.

See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc)

(per curiam).

       Under Hahn we consider three factors when deciding whether to enforce an

appeal waiver: “(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.” Id. at 1325. Mr. Tucker focuses only on the miscarriage-of-justice

factor. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005)

(recognizing that court need not address factors not challenged by defendant).

       Mr. Tucker asserts that there was a miscarriage of justice because his appeal

waiver is “otherwise unlawful.” Hahn, 359 F.3d at 1327 (internal quotation marks

omitted) (setting out four possibilities for showing miscarriage of justice). For a

waiver to be “otherwise unlawful,” “the error must seriously affect the fairness,

integrity or public reputation of judicial proceedings, as that test was employed in

United States v. Olano, 507 U.S. 725, 732 . . . (1993).” Hahn, 359 F.3d at 1327

(brackets omitted) (internal quotation marks omitted). Mr. Tucker argues that his

sentence affects the fairness, integrity, or public reputation of the judicial

proceedings, because the district court erred in determining that he was a career

offender and then incorrectly considered a guidelines sentencing range of 188 to 235


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months for a career offender when the correct range was 70 to 87 months. According

to Mr. Tucker, his prior rape conviction did not qualify as a crime of violence and

therefore he could not be a career offender. Thus, he maintains that his sentence was

illegal and imposing an illegal sentence is plain error.

      When, as is the case here, a plea agreement contains an appeal waiver, “[o]ur

inquiry is not whether the sentence is unlawful, but whether the waiver itself is

unlawful because of some procedural error or because no waiver is possible.” United

States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir. 2007). We do not consider

“whether another aspect of the proceeding may have involved legal error.” United

States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007). Thus, Mr. Tucker’s “argument

that alleged errors in the court’s determination of [his] sentence should invalidate

[his] appellate waiver illustrates what Hahn called ‘the logical failing[] of focusing

on the result of the proceeding, rather than on the right relinquished, in analyzing

whether an appeal waiver is [valid].’” Id. (quoting Hahn, 359 F.3d at 1326 n.12).

Because Mr. Tucker makes no argument that the appeal waiver itself is unlawful, we

need not and will not consider whether there is plain error.

      Accordingly, we grant the government’s motion to enforce the appeal waiver,

and we dismiss the appeal.


                                                Entered for the Court
                                                Per Curiam




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