                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 25, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 10-6292
    v.                                           (D.C. No. 5:10-CR-00153-F-1)
                                                         (W.D. Okla.)
    KENYATTA WAYNE ACEY,

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.



         After entering into a plea agreement that included an appeal waiver,

Kenyatta Wayne Acey pleaded guilty to one count of possession with intent to

distribute cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1). The district

court sentenced him to 262 months of imprisonment. When he appealed, the

United States moved to enforce the waiver. See United States v. Hahn, 359 F.3d



*
      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 This order and judgment is not binding precedent, except under the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.
1315, 1325 (10th Cir. 2004) (en banc) (per curiam). Mr. Acey’s counsel

responded on his behalf and also moved to withdraw pursuant to Anders v.

California, 386 U.S. 738 (1967). Mr. Acey was afforded the opportunity to

respond, see id. at 744, but as of the date of this order, the court has not received

any filing from him.

      We must examine all the proceedings to determine whether it would be

frivolous to oppose the motion to enforce the appeal waiver. See id. 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.” 359 F.3d at 1325.

                               1. Scope of the Waiver

      The first step is to consider “whether the disputed appeal falls within the

scope of the waiver of appellate rights.” Id. According to the docketing

statement, Mr. Acey wishes to argue that the district court should have lowered

his offense level and advisory guideline range by retroactively applying the new

range of punishment for crack cocaine offenses set forth in the Fair Sentencing

Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010).

      The appeal waiver provides:

      [D]efendant in exchange for the promises and concessions made by
      the United States in this plea agreement, knowingly and voluntarily
      waives his right to:

                                          -2-
           a. Appeal . . . his guilty plea, sentence and restitution
      imposed, and any other aspect of his conviction . . .;

            b. Appeal . . . 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 guidelines range determined by the
      Court to apply to this case. . . .

             c. It is provided that defendant specifically does not waive
      the right to appeal a sentence above the advisory sentencing
      guideline range determined by the Court to apply to this case.

Mot. to Enforce, Attach. 1 at 5-6. This waiver is extremely broad, covering

almost every challenge to the conviction or sentence. Mr. Acey’s 262-month

sentence is the low end of the guidelines range determined by the district court,

and his Fair Sentencing Act issue is a challenge to the manner in which his

sentence was determined. Therefore, the issue to be raised on appeal falls within

the scope of the waiver. There is no non-frivolous argument regarding the

satisfaction of the first Hahn factor.

                              2. Knowing and Voluntary

      The second step is to determine “whether the defendant knowingly and

voluntarily waived his appellate rights.” Hahn, 359 F.3d at 1325. In evaluating

whether a waiver was knowing and voluntary, “we examine whether the language

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

and voluntarily” and “we look for an adequate Federal Rule of Criminal

Procedure 11 colloquy.” Id.


                                         -3-
      Both the waiver and the plea colloquy set forth the waiver and establish

that Mr. Acey entered into it knowingly and voluntarily. The waiver itself

informed Mr. Acey of his appeal rights and stated the waiver was knowing and

voluntary. Further, just before the signature block, Mr. Acey confirmed that he

had discussed the plea agreement with his counsel and that he understood and

accepted the terms. During the plea colloquy, the court confirmed that he entered

his plea voluntarily and of his own free will, established his understanding of the

plea agreement, covered the right to appeal and the waiver of that right, and again

confirmed Mr. Acey’s consent to the terms of the plea agreement.

      It is the defendant’s “burden to present evidence from the record

establishing that he did not understand the waiver.” United States v. Edgar,

348 F.3d 867, 872-73 (10th Cir. 2003). Nothing in the record before us indicates

that Mr. Acey did not enter into the waiver knowingly and voluntarily. Therefore,

there is no non-frivolous argument regarding the satisfaction of the second Hahn

factor.

                             3. Miscarriage of Justice

      The final step in the analysis is to determine “whether enforcing the waiver

would result in a miscarriage of justice.” Hahn, 359 F.3d at 1325. A miscarriage

of justice occurs where (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 sentence exceeds

                                         -4-
the statutory maximum”; or (4) “the waiver is otherwise unlawful.” Id. at 1327

(quotations omitted). Nothing in the record indicates that any of these factors are

implicated in this case. Like the other two factors, there is no non-frivolous

argument regarding the satisfaction of the third Hahn factor.

      Because there are no non-frivolous grounds to oppose the enforcement of

the appeal waiver, the motion to withdraw as counsel is GRANTED, the motion to

enforce the plea agreement is GRANTED, and this appeal is DISMISSED.


                                       ENTERED FOR THE COURT
                                       PER CURIAM




                                         -5-
