                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 31, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 09-3365
                                              (D.C. No. 5:08-CR-40027-SAC-1)
    JOE ANTHONY MARTINO,                                  (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and O’BRIEN, Circuit Judges.


         Defendant Joe Anthony Martino entered a guilty plea to one count of

possession with intent to distribute marijuana, in violation of 21 U.S.C.

§ 841(a)(1). His plea agreement states that he “knowingly and voluntarily waives

any right to appeal or collaterally attack any matter in connection with [his]

prosecution, conviction and sentence.” Mot. to Enforce, Attach. 1 (Plea

Agreement) at 7 ¶10. The agreement further states that “[b]y entering into this


*
      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 This order and judgment is not binding precedent, except under the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.
agreement, the defendant knowingly waives any right to appeal a sentence

imposed which is within the guideline range determined appropriate by the court.”

Id. The district court determined that the advisory guideline range was 57-71

months and imposed a sentence of 60 months, which was the statutory maximum.

      Defendant has filed an appeal in which he seeks to challenge the district

court’s calculation of his sentence, arguing that (1) the district court erred in

relying on insufficient and unreliable evidence to determine the drug quantity

attributable to him for the purposes of determining his guideline range; and

(2) the district court erred in applying the sentencing factors of 18 U.S.C.

§ 3553(a). The government has moved to enforce defendant’s appeal waiver

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

curiam). We grant the motion and dismiss the appeal.

      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. Defendant contends his

appeal does not fall within the scope of his appeal waiver; his waiver was not

knowing and voluntary; and enforcing his appeal waiver would result in a

miscarriage of justice.




                                          -2-
      Scope of the Appeal Waiver

      Defendant argues that the scope of his appeal waiver was limited to a

guideline range that was “appropriately” determined by the district court, which

required the district court to use reliable evidence to calculate his guideline range.

Resp. to Mot. to Enforce at 9. But the appeal waiver in defendant’s plea

agreement provides that defendant “waives any right to appeal or collaterally

attack any matter in connection with [his] prosecution, conviction and sentence.”

Mot., Attach. 1 (Plea Agreement) at 7 ¶10. Defendant’s challenge to evidence

used by the district court to calculate his sentence is a “matter in connection with

[his] . . . sentence,” see id., and falls within the scope of his appeal waiver. The

waiver further provides that “the defendant waives the right to appeal the

sentence imposed in this case except to the extent, if any, the court departs

upwards from the applicable sentencing guideline range determined by the court.”

Id. Defendant argues that “[t]he result of the court’s errors in his case was

effectively an upward departure.” Resp. at 9 (emphasis added). But again this is

a challenge to the district court’s calculation of the guideline range as there was

no actual upward departure in this case. Because the district court imposed a

sentence within the applicable sentencing guideline range, defendant’s appeal

falls within the scope of his appellate waiver.




                                          -3-
      Knowing and Voluntary Appeal Waiver

      “When determining whether a waiver of appellate rights is knowing and

voluntary, we especially look to two factors. First, we examine whether the

language of the plea agreement states that the defendant entered the agreement

knowingly and voluntarily. Second, we look for an adequate Federal Rule of

Criminal Procedure 11 colloquy.” Hahn, 359 F.3d at 1325 (citation omitted). But

defendant does not challenge the language of the plea agreement or any portion of

the plea colloquy. See Resp. at 10. Instead, defendant argues his waiver was not

knowing and voluntary because he could not have known “that the court would

use less than reliable information or employ a lesser standard of proof to

determine the amount of weight which would determine his guideline range.” Id.

      Essentially defendant is arguing that his appeal waiver cannot be

considered knowing and voluntary because he did not know how the district court

was going to calculate his sentence and what errors might occur in that process.

We rejected a similar argument in Hahn. See 359 F.3d at 1326 (rejecting the

argument that “a defendant can never knowingly and voluntarily waive his

appellate rights because he cannot possibly know in advance what errors a district

court might make in the process of arriving at an appropriate sentence”). And in

United States v. Montano, 472 F.3d 1202, 1205 (10th Cir. 2007), we expressly

declined to adopt a rule that an appeal waiver is unenforceable when a defendant




                                         -4-
did not know what the sentencing range would be at the time she entered into the

plea agreement.

      As we explained in Hahn, a defendant need not “know with specificity the

result he forfeits before his waiver is valid.” 359 F.3d at 1327. “The law

ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the

defendant fully understands the nature of the right and how it would likely apply

in general in the circumstances—even though the defendant may not know the

specific detailed consequences of invoking it.” Id. (brackets and quotation

omitted). Defendant, therefore, did not need to know exactly how his sentence

would be calculated in order to waive his right to appeal any aspect of his

sentence.

      As the government’s motion details, the plea agreement and the plea

colloquy demonstrate that defendant knowingly and voluntarily waived his

appellate rights. See Mot. to Enforce at 4-5. Defendant has failed to carry his

burden to show that the appeal waiver was not entered knowingly and voluntarily.

See United States v. Edgar, 348 F.3d 867, 872-73 (10th Cir. 2003).

      Miscarriage of Justice

      Finally, defendant asserts the appeal waiver in his plea agreement should

not be enforced because it would result in a miscarriage of justice. An appeal

waiver results in a miscarriage of justice where: (1) “the district court relied on

an impermissible factor such as race”; (2) “ineffective assistance of counsel in

                                          -5-
connection with the negotiation of the waiver renders the waiver invalid”; (3) “the

sentence exceeds the statutory maximum”; or (4) “the waiver is otherwise

unlawful.” Hahn, 359 F.3d at 1327 (quotation omitted).

      Defendant contends that the district court “erred by calculating [his]

offense level based on evidence that the government did not prove by a

preponderance and facts that were unsupported by the record at sentencing.”

Resp. at 11. Defendant does not identify which factor is at issue in his case, but

it appears he is arguing that the waiver is otherwise unlawful because the other

three factors are not at issue here. In order to meet his burden on the fourth

factor, see United States v. Anderson, 374 F.3d 955, 959 (10th Cir. 2004), “‘the

error [must] seriously affect[] the fairness, integrity or public reputation of [the]

judicial proceedings.’” Hahn, 359 F.3d at 1327 (quoting United States v. Olano,

507 U.S. 725, 732 (1993)). Although defendant asserts that the district court

erred in the calculation of his sentence, he has not demonstrated that any alleged

error seriously affected the fairness, integrity or public reputation of the judicial

proceedings.

      Accordingly, defendant has not established any of the applicable exceptions

to the enforcement of his appeal waiver. We therefore GRANT the government’s




                                          -6-
motion to enforce the appeal waiver contained in defendant’s plea agreement and

DISMISS the appeal.


                                     ENTERED FOR THE COURT
                                     PER CURIAM




                                       -7-
