                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                       February 5, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                        No. 13-6260
                                                  (D.C. No. 5:13-CR-00111-F-1)
ROGER PRESTON KUHN,                                       (W.D. Okla.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


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


      Roger Preston Kuhn pleaded guilty to receipt of child pornography and

possession of child pornography, and received concurrent sentences of 210 months

and 120 months of imprisonment. In a plea agreement, Mr. Kuhn “knowingly and

voluntarily” waived his right to appeal “his guilty plea, sentence and restitution

imposed, and any other aspect of his conviction.” Dist. Ct. Doc. 21, at 7. As to


*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
sentence, he waived his right to appeal the “sentence as imposed by the Court and the

manner in which [it] is determined, provided [it] is within the advisory guideline

range determined by the Court to apply to this case.” Id. He further stated that “this

waiver remains in full force and effect and is enforceable, even if the Court rejects

one or more of the positions of the United States or defendant” with respect to

various offense-level adjustments. Id. He also acknowledged that the court was not

bound by the parties’ agreements or recommendations regarding the sentencing

guidelines, id. at 6, that the court had authority to impose any sentence within the

statutory maximum, id. at 6-7, and that the sentence to be imposed was within the

sole discretion of the court, id. at 9. Notwithstanding his appeal waiver, Mr. Kuhn

filed this appeal following the entry of the judgment of conviction. The government

has now moved to enforce his appeal waiver. We grant the motion.

       The government’s motion demonstrates, in a facially sufficient manner, that

the waiver in the plea agreement applies to this appeal, that the waiver was knowing

and voluntary, and that there are no circumstances evident on the existing record to

suggest a miscarriage of justice. See generally United States v. Hahn, 359 F.3d 1315,

1325 (10th Cir. 2004) (en banc) (per curiam) (summarizing three components of

court’s inquiry when enforcing appeal waiver). In his response, Mr. Kuhn raises

three points to circumvent the consequences of his appeal waiver.

      First, he contends his waiver was not knowing and voluntary because it was

based on a misunderstanding of the relevant guideline range due to counsel’s


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underestimation of offense and criminal history levels. But erroneous guideline

predictions by counsel do not make a plea unknowing or involuntary, at least where

the defendant acknowledged he knew that the applicable guideline range could not be

predicted with certainty because it is solely within the discretion of the district court.

United States v. Silva, 430 F.3d 1096, 1099-1100 (10th Cir. 2005). That was the case

here. In addition to the pertinent provisions of the plea agreement cited above, the

plea petition recognized that the court’s exclusive discretion over the sentencing

determination meant that no one had authority to make favorable promises or

predictions as to sentencing. Pet. to Enter Plea of Guilty, at 10.

       Second, Mr. Kuhn contends there is a “miscarriage of justice” exempting him

from his waiver, because the district court relied on an “impermissible factor” in

imposing sentence. See Hahn, 359 F.3d at 1327 (recognizing this waiver exception).

The impermissible factor he cites is the court’s alleged reliance on unproven bad acts

in setting his offense level. Actually, although Mr. Kuhn loosely characterizes these

acts as “unproven,” he notes they are based on admissions attributed to him in police

reports (which he disavows), so his objection goes to the weight, not the absence, of

evidence supporting the court’s findings. In any event, however characterized, his

contention rests on a basic misunderstanding of the impermissible-factor exception.

We have indicated the sort of factor that could fall within this limited exception by

the illustrative phrase “such as race.” Id.; see also United States v. Salas-Garcia,

698 F.3d 1242, 1255 (10th Cir. 2012). Nothing remotely like that is involved here.


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Rather, all we have is an unremarkable allegation that the court erred in finding

certain relevant conduct when determining the offense level. Garden variety

sentencing objections of this sort hardly involve reliance on an impermissible factor

such as race; indeed, if they did, this miscarriage-of-justice exception would exempt

from a typical appeal waiver a large portion of the objections it is clearly meant to

bar. Mr. Kuhn cites no authority for this facially untenable position.

      Finally, Mr. Kuhn contends that counsel rendered ineffective assistance with

respect to negotiating the appeal waiver, referring again to counsel’s miscalculation

of the applicable offense and criminal history levels. He does not indicate that these

(unspecified) miscalculations are evidenced anywhere in the existing record, nor does

the docket reflect any effort to raise this alleged ineffective-assistance claim to the

district court. Accordingly, the claim is not available for appeal. See United States

v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011) (noting ineffective assistance claims

may be heard on direct appeal “only where the issue was raised before and ruled

upon by the district court and a sufficient factual record exists”). This rule of

unavailability applies even though the ineffective-assistance claim is invoked in an

effort to invalidate an appeal waiver under the miscarriage-of-justice exception.

See United States v. Porter, 405 F.3d 1136, 1143-44 (10th Cir. 2005). Under such

circumstances, we properly enforce the appeal waiver on direct appeal, see id., but do

not thereby prejudice the defendant’s ability to pursue an ineffective-assistance claim




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on collateral review, see, e.g., United States v. Polly, 630 F.3d 991, 1003 (10th Cir.

2011).

         The government’s motion to enforce the appeal waiver is granted and the

appeal is dismissed. This disposition is without prejudice to any motion brought by

Mr. Kuhn under 28 U.S.C. § 2255 asserting ineffective assistance of counsel.


                                                Entered for the Court
                                                Per Curiam




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