                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 14 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                   No. 01-3094
                                                 (D.C. No. 00-CR-20113-GTV)
    TROY OSBORN,                                         (D. Kansas)

                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before TACHA , Chief Judge, PORFILIO, Circuit Judge, and BRORBY ,
Senior Circuit Judge.




         After examining the briefs and appellate record, 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Defendant Troy Osborn pled guilty to one count of possession of child

pornography under 18 U.S.C. § 2252(a)(4)(B), and was sentenced to forty-one

months’ imprisonment, three years’ supervised release, a special assessment of

$100.00 and a fine of $7,500.00. Osborn contends the district court applied an

incorrect sentencing guideline in calculating his sentence.

       The government contends that Osborn waived the right to appeal his

sentence pursuant to his plea agreement. In his plea agreement, Osborn waived

the right to appeal any sentence imposed by the court within the applicable

sentencing guideline range, as determined by the court, but reserved the right to

appeal an upward departure from the sentencing guideline range or an illegal

sentence. See Aplt. App. at 26.

       “A defendant’s knowing and voluntary waiver of the statutory right to

appeal his sentence is generally enforceable.”    United States v. Black , 201 F.3d

1296, 1300 (10th Cir. 2000) (quotation and alteration omitted). Appellate waivers

are subject to certain exceptions, including where the district court relied on an

impermissible factor such as race, where ineffective assistance of counsel in

connection with the negotiation of the waiver renders the waiver invalid, where

the sentence exceeds the statutory maximum, or where the waiver is otherwise

unlawful. See id. at 1301.




                                            -2-
       Osborn appears to contend that the district court’s alleged application of an

improper sentencing guideline amounts to an illegal sentence. Notably, however,

Osborn’s plea agreement explicitly grants the district court the discretionary

power to determine the applicable guideline. Further, the sentence imposed by

the district court does not fall within the definition of an illegal sentence.        See

United States v. Neary , 183 F.3d 1196, 1198 (10th Cir. 1999) (defining facially

illegal sentences “as those sentences based on race, gender, or other

considerations contravening clearly established public policy”), and             United States

v. Dougherty , 106 F.3d 1514, 1515 (10th Cir. 1997) (defining an illegal sentence

as “one which is ambiguous with respect to the time and manner in which it is to

be served, is internally contradictory, omits a term required to be imposed by

statute, is uncertain as to the substance of the sentence, or is a sentence which the

judgment of conviction did not authorize” (quotation omitted)).

       We have examined the sentencing transcript, the plea agreement, and the

entire record on appeal. Osborn does not contend that the plea agreement was not

entered knowingly and voluntarily. The sentence imposed was not an illegal

sentence, and the district court did not depart from the guideline it determined

was applicable.    See United States v. Angevine , ___ F. 3d ___, No. 01-6097,

2002 WL 254138, at *5 (10th Cir. Feb. 22, 2002). Consequently, Osborn waived

his right to bring this appeal.


                                              -3-
The appeal is DISMISSED for lack of jurisdiction.



                                           Entered for the Court



                                           Deanell Reece Tacha
                                           Chief Judge




                                -4-
