                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS                 October 21, 2008
                                                                  Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT
                                                                      Clerk of Court


    UNITED STATES OF AMERICA,

                Plaintiff!Appellee,
                                                        No. 08-6142
    v.                                          (D.C. No. 5:07-CR-00233-F-1)
                                                        (W.D. Okla.)
    JOEL KEITH NEWTON,

                Defendant!Appellant.


                            ORDER AND JUDGMENT *


Before McCONNELL, TYMKOVICH, and GORSUCH, Circuit Judges.



         Defendant Joel Keith Newton pleaded guilty to possession of child

pornography. In his plea agreement, defendant agreed to waive his right to

appeal. Nonetheless, defendant has filed a notice of appeal. The government has

now moved to enforce defendant’s appeal waiver under United States v. Hahn,




*
      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 This order and judgment is not binding precedent, except under the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.
359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). We grant the motion and

dismiss the appeal.

      Defendant stated in his plea agreement that he “knowingly and voluntarily

waives his right to . . . [a]ppeal or collaterally challenge his guilty plea, sentence

and restitution imposed, and any other aspect of his conviction” or “[a]ppeal,

collaterally challenge or move to modify . . . his sentence as imposed by the Court

and the manner in which the sentence is determined, provided the sentence is

within or below the advisory guideline range determined by the Court to apply to

this case.” Mot. to Enforce, Attachment 1 (Plea Agreement) at 6. The district

court imposed a sentence of 120 months, which was at the maximum statutory

penalty of 120 months of incarceration and within the advisory guideline range of

108 to 135 months of incarceration.

      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.” 325 F.3d at 1325. The

miscarriage-of-justice 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 renders the

waiver invalid”; (c) his “sentence exceeds the statutory maximum”; or (d) his

appeal waiver is otherwise unlawful and the error “seriously affect[s] the fairness,

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integrity or public reputation of judicial proceedings.” Id. at 1327 (quotations

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 waiver. He contends, however, that the waiver is

“otherwise unlawful” under Hahn’s miscarriage-of-justice prong because he

should be able to appeal the district court’s reliance on the advisory guidelines for

child pornography cases in determining his sentence. Defendant’s Response at 3.

Defendant contends that the advisory guidelines in child pornography cases “are

not the product of careful study by the United States Sentencing Commission”

and should have been altogether or largely ignored in his case. Id.

      Defendant’s argument is without merit. The miscarriage-of-justice

exception defendant invokes looks to whether “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 what 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. at 1326 n.12. “[T]he relevant

question . . . is not whether [defendant’s] sentence is

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

United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005).

      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.

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

appeal is DISMISSED.



                                         ENTERED FOR THE COURT
                                         PER CURIAM




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