                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                     February 28, 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. 06-4168
                                                  (D.C. No. 1:05-CR -133-TS)
    R IG O BER TO O RO ZC O,                              (D. Utah)
    also known as Alejandro Perez,
    also known as Alejandro Garcia,
    also known as Antonio Cruz,

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before KELLY, HA RTZ, and HO LM ES, Circuit Judges.




         Defendant Rigoberto Orozco pled guilty to passport fraud in violation of

18 U.S.C. § 1542 (Count One) and aggravated identity theft in violation of

18 U.S.C. § 1028A (Count Two). In his plea agreement, defendant agreed to

waive his right to appeal. Nonetheless, defendant has filed a notice of appeal.


*
      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 This order and judgment is not binding precedent, except under the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.
The government has now moved to enforce defendant’s appeal waiver under

United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc). W e grant the

motion and dismiss the appeal.

      Defendant stated in his plea agreement that:

      I knowingly, voluntarily and expressly waive my right to appeal any
      sentence imposed upon me, and the manner in which the sentence is
      determined, on any of the grounds set forth in Title 18, United States
      Code, Section 3742 or on any ground whatever, except I do not
      waive my right to appeal (1) a sentence above the maximum penalty
      provided in the statute of conviction . . . and (2) a sentence above the
      high-end of the guideline range as determined by the district court at
      sentencing, or, in the event that no such determination is made by the
      district court, a sentence above the high-end of the guideline range as
      set forth in the final presentence report.

Plea Agreement at 3-4 (dated April 4, 2006).

      The district court imposed a sentence of seven months on Count One and

twenty-four months on Count Two, to be served consecutively. This sentence was

below the maximum statutory penalty of ten years for Count One and at the

statutory mandatory minimum of two years for Count Two. Further, the sentence

was w ithin the twenty-eight to thirty-four month advisory guideline range for both

convictions.

      Under Hahn, we consider “(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. The miscarriage-of-justice



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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 otherwise unlawful

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

judicial proceedings.” Id. at 1327 (quotation omitted). The government’s motion

addresses these considerations, explaining why none undermines defendant’s

appeal waiver here.

      Defendant concedes that he knowingly and voluntarily entered his plea,

including the appeal waiver, and that the sentencing issues to be raised on appeal

fall within the scope of his w aiver. He contends, however, that the waiver is

“otherw ise unlawful” under Hahn’s miscarriage-of-justice prong because the

district court did not give any reasons for “rejecting a non-G uidelines” sentence.

Defendant’s Response at 1. Defendant contends that the sentencing judge could

have imposed the sentence “based solely upon his adoption of the Sentencing

Guidelines recommendation, without any explicit consideration of the other

sentencing factors listed in 18 U.S.C. § 3355.” Id. at 2. He contends the district

court therefore imposed the Guidelines mandatorily in violation of United States

v. Booker, 543 U.S. 220 (2005).

      Defendant’s argument is without merit; this court rejected a similar

argument in United States v. Porter, 405 F.3d 1136, 1144 (10th Cir.),

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cert. denied, 126 S. Ct. 550 (2005) (upholding appeal waiver as valid where

district court treated the Guidelines as mandatory in violation of Booker). The

miscarriage-of-justice exception defendant invokes looks to w hether “the waiver

is otherwise unlawful,” Hahn, 359 F.3d at 1327 (quotation omitted and emphasis

added), not whether some other aspect of the proceeding may have involved legal

error. Defendant’s position that his appeal waiver should be excused due to

alleged error in the determination of his sentence entails w hat Hahn noted as “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., 359

F.3d at 1326 n.12. “[T]he relevant question . . . is not whether [defendant’s]

sentence is unlawful . . . , but whether . . . his appeal waiver itself [is]

unenforceable.” Porter, 405 F.3d at 1144.

       Defendant has not asserted any claim that his appeal waiver itself was

unlawful, much less shown that enforcement of the waiver would seriously affect

the fairness, integrity, or public reputation of the judicial proceedings. In this

regard, we note (1) that the plea agreement clearly set out the maximum sentence

defendant faced and explained the appellate rights he relinquished in exchange for

the benefits offered by the government, and (2) that the sentence imposed by the

district court complies with the terms of the agreement and the understanding

expressed by the defendant at the plea hearing. See id. at 1145.




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      The government’s motion to enforce the waiver is GRANTED and the

appeal is DISM ISSED. The mandate shall issue forthwith.


                                    ENTERED FOR THE COURT
                                    PER CURIAM




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