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

                            FOR THE TENTH CIRCUIT                           August 31, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-6118
                                                    (D.C. No. 5:17-CR-00140-M-1)
 DREW BLANTON,                                              (W.D. Okla.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before TYMKOVICH, Chief Judge, HARTZ and O’BRIEN, Circuit Judges.
                 _________________________________

      Drew Blanton pleaded guilty to one count of bank robbery. In his plea

agreement, he waived his right to appeal his sentence and the manner in which it was

determined, unless it was above the advisory guideline range determined by the court

to apply. Mr. Blanton was sentenced to 78 months in prison, which was the bottom

of the guideline range of 78 to 97 months the district court determined applied to his

case. Despite the appellate waiver in his plea agreement, he filed a notice of appeal.

His docketing statement indicates he wants to challenge his sentence. The

government has filed a motion to enforce the appellate waiver in the plea agreement



      *
         This order and judgment is not binding precedent, except under the doctrines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.
pursuant to United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc)

(per curiam). We grant the motion and dismiss this appeal.

      Mr. Blanton first argues that the motion to enforce should be denied because it

was not timely filed. While the motion appears to have been submitted one day late,

see 10th Cir. R. 27.3(A)(3)(b), we accept it for consideration. See 10th Cir. R. 2.1

(permitting the court to “suspend any part of these rules in a particular case on its

own or on a party’s motion”); see also Fed. R. App. P. 2 (permitting court of appeals

to suspend any provision of the rules in a particular case to expedite its decision or

for other good cause).

      We now turn to the substance of the motion. In reviewing a motion to enforce

an appeal waiver, we conduct the following three-prong analysis: “(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[.]” Hahn, 359 F.3d at

1325. Mr. Blanton concedes that his appeal falls within the scope of his waiver of

appellate rights and that he knowingly and voluntarily waived his appellate rights.

He argues, however, that enforcing the waiver would result in a miscarriage of

justice. We disagree.

      In Hahn, we held that enforcement of an appellate waiver does not result in a

miscarriage of justice unless one of four situations exist: (1) “the district court relied

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

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

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

Id. at 1327 (internal quotation marks omitted). To satisfy the fourth situation, “the

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

proceedings.” Id. (brackets and internal quotation marks omitted).

      Mr. Blanton contends that his appeal waiver “is ‘otherwise unlawful’ because

the district court’s error in applying the Guidelines and denying [his] Motion for

Downward Variance was so egregious that it affected the fairness, integrity, and

reputation of the proceedings.” Resp. to Mot. to Enforce at 4. But this argument has

to do with whether his sentence is unlawful, not whether the appeal waiver is

unlawful, and that is the wrong inquiry. See United States v. Sandoval, 477 F.3d

1204, 1208 (10th Cir. 2007) (“Our inquiry is not whether the sentence is unlawful,

but whether the waiver itself is unlawful because of some procedural error or because

no waiver is possible.”).

      Mr. Blanton has not offered any argument as to how his appeal waiver is

unlawful. Instead, his arguments all relate to alleged errors the district court

committed in sentencing him; he asserts that the district court erred in overruling his

objection to a four-level increase and in denying his request for a downward

variance. See Resp. at 4-7. But, as we have explained, the “otherwise unlawful”

exception to an appeal waiver “looks to whether the waiver is otherwise unlawful,

not to whether another aspect of the proceeding may have involved legal error.”

United States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007) (internal citation and



                                            3
quotation marks omitted). Mr. Blanton has therefore failed to show that enforcing

the appellate waiver in his plea agreement will result in a miscarriage of justice.

      Accordingly, we grant the motion to enforce and dismiss this appeal.


                                            Entered for the Court
                                            Per Curiam




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