                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS                April 15, 2008

                                   TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 07-5131
 v.                                           (D.Ct. No. 4:06-CR-00052-JHP-2)
                                                         (N.D. Okla.)
 DIANA BRICE,

          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before TACHA, Circuit Judge, and BARRETT and BRORBY, Senior Circuit
Judges.



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

unanimously that oral argument would not materially assist in 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         This order and judgment is not binding precedent except under the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.
      Appellant Diana Brice pled guilty to one count of conspiracy to knowingly

transfer, possess, or use, without lawful authority, a means of identification of

another person garnered without authorization from a police database, in violation

of 18 U.S.C. § 1028(f) (Count 1); and one count of conspiracy to defraud the

government based on false, fictitious, or fraudulent claims in conjunction with the

filing of false federal income tax returns, in violation of 18 U.S.C. § 286 (Count

9). Ms. Brice appeals her thirty-seven-month sentence, claiming the district court

erred in imposing a two-level obstruction of justice increase to her base offense

level under United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”)

§ 3C1.1. In turn, the government opposes the appeal, contending, in part, that

Ms. Brice waived her right to appeal any sentence below the statutory maximum.

We exercise our jurisdiction pursuant to 28 U.S.C. § 1291 where a criminal

defendant waives her appellate rights in an enforceable plea agreement. United

States v. Ibarra-Coronel, 517 F.3d 1218, 1220 (10th Cir. 2008) (relying on United

States v. Hahn, 359 F.3d 1315, 1324 (10th Cir. 2004) (en banc) (per curiam)).

For the reasons set forth hereafter, we conclude Ms. Brice waived her right to

bring this appeal and therefore we dismiss her appeal.




                                         -2-
                                   I. Background

      After a twenty-one-count indictment issued against her, Ms. Brice pled

guilty to Count 1, for conspiracy to improperly access and utilize identification

information from a police database; and Count 9, for conspiracy to defraud the

government by submitting false federal income tax returns. As part of the plea

agreement, Ms. Brice agreed to waive the right to directly appeal her conviction

and sentence, but reserved the right to appeal if the sentence imposed was above

the maximum statutory sentence. The plea agreement stated Ms. Brice “expressly

acknowledges that counsel has explained her appellate and post-conviction rights”

and that she “understands her rights” and “knowingly and voluntarily waives

those rights.” R., Supp. Vol. 1, Doc. 187 at 4. In agreeing to the conditions and

terms of her waiver of appellate rights, Ms. Brice initialed each page on which

they were cited and also signed her name at the end of the appellate waiver

provision.



      During the Rule 11 colloquy conducted at Ms. Brice’s plea hearing, the

district court thoroughly and comprehensively questioned her about her guilty

plea and appellate waiver. See Fed. R. Crim. P. 11. Ms. Brice explicitly

confirmed, in part, that she: (1) had read the twenty-one-count indictment against

her as well as the plea agreement which she had initialed, indicating she had read

and agreed to the terms on each initialed page, and signed, acknowledging her

                                         -3-
understanding of its terms and conditions; (2) was satisfied with the

representation and advice of counsel and had discussed the plea agreement with

counsel; (3) understood the rights she was giving up by pleading guilty, including

the right to appeal as provided in the waiver of appeal provision; and (4)

understood the Guidelines are advisory and that if the court imposed the

maximum sentence – either five years on Count 1 or ten years on Count 9 – she

could not, for that reason alone, withdraw her guilty plea. Following the colloquy

with Ms. Brice, the district court found her competent and capable of entering an

informed plea, aware of the nature of the charges and consequences of her plea,

and that her plea of guilty was knowing and voluntary.



      After the district court accepted Ms. Brice’s guilty plea, the probation

officer prepared a presentence report calculating her sentence under the applicable

Guidelines. The presentence report set her base offense level at six for Count 1

and sixteen for Count 9, adding a two-level increase under U.S.S.G. § 3C1.1 for

obstruction of justice because she persuaded individuals to lie during the

investigation into her tax offense. 1 After making other uncontested adjustments


      1
         Specifically, the presentence report noted that during the investigation
Ms. Brice contacted at least five mothers of children whose names and personal
information had been used to falsify tax returns, asking them to submit false
statements indicating they authorized another person to claim their children as
dependents; those mothers later recanted their statements, admitting they were
false and incomplete.

                                         -4-
to the offense level calculations, including a two-level decrease in her offense

level for acceptance of responsibility and a multiple-count adjustment, the offense

level for both offenses totaled twenty. A total offense level of twenty, together

with a criminal history category of I, resulted in an advisory Guidelines range of

thirty-three to forty-one months imprisonment.



      Ms. Brice filed objections to the presentence report, contesting, in part, the

two-level offense increase for obstruction of justice. During the sentencing

hearing Ms. Brice continued to object to the obstruction of justice increase, and,

in turn, the government presented witness testimony supporting the obstruction of

justice offense level increase. 2 The district court took Ms. Brice’s objections and

other matters under advisement, allowing the parties to submit additional

pleadings prior to continuing the hearing.



      At the continued sentencing hearing the district court ruled on the matters

taken under advisement, including the obstruction of justice objection,

determining Ms. Brice willfully attempted to obstruct the administration of justice


      2
         In particular, the government called a witness who testified that during
April or May of 2006, Ms. Brice informed her they were being investigated and
asked her to provide false information in the form of a statement or affidavit that
the witness’s two children, who had been illegally claimed as dependents on
another person’s tax return, were provided financial and other support by that
person, which was not true.

                                         -5-
during the course of the government’s investigation of her offenses by attempting

to conceal her criminal activities relating to her fraudulent tax schemes. In

sentencing Ms. Brice within the Guidelines range of thirty-three to forty-one

months incarceration, the district court explicitly stated it had considered the

advisory Guidelines and the sentencing factors under 18 U.S.C. § 3553(a), which

included the nature and circumstances of the offense and Ms. Brice’s criminal

history. It then sentenced Ms. Brice to thirty-seven months imprisonment.



                                   II. Discussion

      Ms. Brice challenges her sentence on appeal solely on grounds the district

court erred in applying the two-level obstruction of justice offense increase. The

government responds, pointing out, in part, that Ms. Brice waived her right to

appeal any sentence which was not beyond the maximum statutory sentence,

which is five years for Count 1 and ten years for Count 9. In reply, Ms. Brice

attempts to avoid the waiver of her appeal rights by claiming the government

breached the terms and conditions in the plea agreement when it chose to

participate in the sentencing hearing rather than enforce the appellate waiver by

simply requesting or demanding the district court sentence her within the

maximum terms proscribed by law. She also argues that by participating in the

sentencing hearing, in both calling witnesses and permitting her to contest the

accuracy of the presentence report, the government waived the protections of the

                                          -6-
plea agreement. In support of her arguments, she suggests that if the appellate

waiver applied, then no purpose existed for conducting an evidentiary sentencing

hearing.



      In considering the appeal, we first determine whether Ms. Brice waived her

right to appeal. We do so by applying a three-factor analysis to determine

whether: (1) the disputed appeal falls within the scope of the waiver of appellate

rights; (2) the defendant’s waiver of appellate rights was knowing and voluntary;

and (3) enforcing the waiver will not result in a miscarriage of justice. Hahn, 359

F.3d at 1325-27. In this case, it is clear the disputed appeal falls within the

waiver of her appellate rights because Ms. Brice waived her right to appeal any

sentence not over the statutory maximum sentence, which was five years on

Count 1 and ten years on Count 9, and the thirty-seven-month sentence she

received is well below those maximum sentences. A review of the plea agreement

and Rule 11 colloquy also establishes her plea was knowing and voluntary, which

she does not contest on appeal.



      As to the third factor, we have determined a “miscarriage of justice”

occurs: (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

                                          -7-
exceeds the statutory maximum; or (4) where the waiver is otherwise unlawful.

Id. at 1327 (quotation marks and citations omitted). In order “[t]o be ‘otherwise

unlawful,’ [the d]efendant’s waiver must embody an error that ‘seriously affects

the fairness, integrity, or public reputation of the judicial proceedings.’” Ibarra-

Coronel, 517 F.3d at 1222 (citation omitted).



      In this case, Ms. Brice does not contend, nor can we ascertain by the record

provided, that the district court relied on an impermissible factor or that her

counsel was ineffective, which is a claim we generally require to be raised on

collateral review and find no exception to here. See id. In addition, as previously

discussed, her sentence does not exceed the statutory maximum. See id. Lastly,

Ms. Brice has also not shown or alleged that enforcing the waiver is unlawful,

which requires a showing that the waiver embodies an error that “seriously affects

the fairness, integrity, or public reputation of the judicial proceedings.” Id.



      Finally, we reject Ms. Brice’s nonsensical contentions that: (1) the

government breached the plea agreement or made her appellate waiver invalid by

participating in the sentencing hearing; (2) no purpose existed for conducting an

evidentiary sentencing hearing if the appellate waiver applied; and (3) the

government was required to demand a maximum statutory sentence rather than

contesting her objections at the sentencing hearing. Clearly, the purpose of the

                                          -8-
sentencing hearing was to determine the length of her sentence, and in order to do

that the district court needed to address the different objections raised by Ms.

Brice and consider the § 3553(a) sentencing factors, advisory Guidelines, and

other relevant law and facts applicable in her case. Because both Ms. Brice and

the government had an interest in the length of the sentence she received, they

also had an interest in assisting the court in its determination, regardless of

whether or not she waived her appeal rights. Moreover, nothing in the plea

agreement prevented the government, as a party to the proceeding, from

responding to Ms. Brice’s objections to the presentence report and presenting

evidence. Fortunately for Ms. Brice, the district court did not simply apply the

maximum statutory sentences to her offenses, as she suggests the government

should have demanded, but, as required, carefully considered the § 3553(a)

sentencing factors and advisory Guidelines in imposing her sentence, which fell

well below the statutory maximum sentences for both offenses.



      As a result, none of Ms. Brice’s contentions establish her appeal waiver is

unenforceable. Because we hold Ms. Brice’s appeal waiver enforceable, we do

not reach her substantive claim on the merits regarding the two-level obstruction

of justice adjustment. See Ibarra-Coronel, 517 F.3d at 1221.




                                          -9-
                        III. Conclusion

Accordingly, we DISMISS this appeal.



                             Entered by the Court:

                             WADE BRORBY
                             United States Circuit Judge




                              -10-
