                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                        May 15, 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. 07-3017
                                                (D.C. No. 06-CR-10181-M LB)
    B W O M I E.V . M U BA ,                              (D . Kan.)

                 Defendant-Appellant.



                               OR D ER AND JUDGM ENT *


Before BR ISC OE, O’BRIEN, and TYM KOVICH, Circuit Judges.




         Bwomi E.V. M uba pled guilty, pursuant to a plea agreement, to four counts

of distributing cocaine base in violation of 21 U.S.C. § 841(a)(1), and the district

court sentenced him to sixty months’ imprisonment. Although the plea agreement

included a waiver of his right to appeal, M r. M uba filed a notice of appeal

seeking to challenge the degree of downward departure granted by 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 This order and judgment is not binding precedent, except under the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.
district court. The government has moved to enforce the appeal waiver under

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

W e grant the motion and dismiss this appeal.

                                          I

      Under the terms of the plea agreement, M r. M uba waived his right to appeal

any sentence imposed within the guidelines range determined appropriate by the

district court, unless the court departed upwards from the applicable sentencing

guideline range determined by the court. The plea agreement provided that if the

government determined that M r. M uba provided substantial assistance, the

government would ask the district court to consider reducing the sentence he

would otherw ise receive under the applicable statutes or sentencing guidelines.

See 18 U.S.C. § 3553(e); 28 U.S.C. § 994(n); U.S.S.G. § 5K1.1. Even if the

government filed a motion for a reduction in sentence due to substantial

assistance, the plea agreement provided that the district court would still

determine the appropriate sentence.

      M r. M uba’s presentence report reflected an applicable advisory guidelines

range of seventy-eight to ninety-seven months’ imprisonment, with Counts 3 and

4 requiring a minimum sentence of sixty months’ imprisonment. Based on his

substantial assistance to authorities, the government filed a motion pursuant to

§ 5K1.1 to depart from the guidelines and the mandatory minimum sentence and

recommended a sentence of forty-eight months’ imprisonment.

                                         -2-
      The district court, however, determined that M r. M uba’s cooperation was

not sufficient to justify a reduction from seventy-eight to forty-eight months’

imprisonment. The district court instead sentenced M r. M uba to sixty months of

imprisonment. M r. M uba appealed, and the government moved to enforce the

plea agreement.

                                          II

      In Hahn, this court held that the waiver of appellate rights will be enforced

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.” 359 F.3d at 1325. The government’s motion to enforce addresses each

factor, but M r. M uba argues only that his appeal does not fall within the scope of

the appellate waiver and, if his appeal does fall within the scope of the waiver, he

did not know ingly and voluntarily waive his appellate rights. Accordingly, we

address only the first and second Hahn factors. See United States v. Porter,

405 F.3d 1136, 1143 (10th Cir. 2005) (recognizing each Hahn factor need not be

addressed if defendant does not make argument with respect to that factor).

      M r. M uba argues that his appellate waiver did not preclude him from

challenging the degree of departure awarded by the district court under § 5K1.1.

To support his argument, he cites to our recent case of United States v. Gordon,

480 F.3d 1205 (10th Cir. 2007).

                                         -3-
      In Gordon, the defendant appealed the portion of her sentence requiring her

to pay restitution, arguing that the amount of restitution ordered exceeded the

M andatory Victim Restitution Act statutory limits. Id. at 1206. The government

sought to enforce the plea agreement on the ground that the defendant waived her

right to appeal the amount of restitution. Id. W e held that the defendant could

appeal the restitution amount, because she did not waive her right to challenge an

unlawful restitution order. Id. at 1208-10.

      Unlike in Gordon, M r. M uba does not argue that his sentence was unlaw ful,

and there is no question that his sentence is lawful. His mere dissatisfaction with

the district court’s decision to depart from the guidelines to a lesser extent than

recommended by the government is insufficient to grant him a right to appeal in

light of the plea agreement provisions that the district court would determine the

appropriate sentence and that he reserved his right to appeal only if the district

court departed upwards from the applicable guidelines range determined by the

court. Furthermore, under the terms of the plea agreement, M r. M uba agreed he

would not request a sentence below the low end of the guidelines range.

Accordingly, we conclude that M r. M uba’s appeal falls within the scope of his

appellate waiver.

      Because we conclude that M r. M uba’s appeal falls within the scope of the

appeal waiver, we must also consider his second argument that he did not

knowingly and voluntarily enter into the waiver. In determining whether his

                                          -4-
waiver of his right to appeal was made knowingly and voluntarily, we consider

“whether the language of the plea agreement states that [he] entered the

agreement knowingly and voluntarily” and whether there is “an adequate Federal

Rule of Criminal Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. M r. M uba

bears the burden to provide evidence showing he did not enter into the plea

agreement knowingly and voluntarily. Id. at 1329.

      He fails to meet this burden. The language of the plea agreement states

that he entered the plea agreement knowingly and voluntarily. At the plea

hearing, he affirmed his understanding that if the government filed a motion

concerning substantial assistance, the court would decide whether to grant the

motion and what sentence to give; that the district court did not know at the time

of the plea hearing what his sentence would be; and that the district court was not

required to follow the government’s recommended sentence. W e presume the

statements M r. M uba made during the plea colloquy are true. See United States v.

Novosel, 481 F.3d 1288, 2007 W L 1087290 at *6 (10th Cir. 2007) (per curiam).

Furthermore, M r. M uba need not know what specific sentence he will receive

before his waiver can be valid. Hahn, 359 F.3d at 1326-27. Based on the

language of the plea agreement and his reaffirmation of the plea agreement’s

provisions during the Rule 11 colloquy, we conclude M r. M uba knowingly and

voluntarily waived his right to appeal his sentence.




                                         -5-
      Accordingly, we GRANT the government’s motion to enforce the plea

agreement and DISM ISS the appeal. The mandate shall issue forthwith.



                                    ENTERED FOR THE COURT
                                    PER CURIAM




                                      -6-
