                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      January 20, 2010
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                    TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 09-6158
 MICHAEL WADE KENT,                                 (D.C. No. CR-07-00178-HE-1)
                                                            (W. D. Okla.)
           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument.

       Defendant Michael Kent pled guilty to one count of knowingly transporting child

pornography in interstate commerce by means of the Internet, in violation of 18 U.S.C. §



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
2252A(a)(1), and was sentenced to a term of imprisonment of 210 months. Kent now

seeks to appeal his sentence to assert that the restriction on Internet usage included in his

special conditions of supervised release was overbroad, and that his counsel was

ineffective in failing to present mitigating evidence at sentencing. The government,

however, argues that Kent waived his right to appeal his sentence under the express terms

of the parties’ written plea agreement. Exercising jurisdiction pursuant to 28 U.S.C. §

1291, we agree that Kent waived his right to appeal his sentence and therefore dismiss the

appeal.

                                              I

       On July 25, 2007, a federal grand jury returned a six-count indictment charging

Kent with one count (Count 1) of using the Internet to knowingly attempt to persuade a

person he believed to be a 14-year-old girl to engage in sexual activity for which Kent

could be charged with a criminal offense, in violation of 18 U.S.C. § 2422(b), two counts

(Counts 2 and 3) of knowingly transporting child pornography in interstate commerce by

means of the Internet, in violation of 18 U.S.C. § 2252A(a)(1), one count (Count 4) of

using the Internet to knowingly attempt to transfer obscene matter to a person Kent

believed to be a 14-year-old girl, in violation of 18 U.S.C. § 1470, and two counts

(Counts 5 and 6) of knowingly possessing material that contained images of child

pornography, in violation of 18 U.S.C. § 2252(a)(5)(B).

       On December 21, 2007, Kent waived his right to a jury trial and filed a petition to

enter a plea of guilty to Count 2 of the indictment. On that same date, the parties filed

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with the district court a copy of their written plea agreement. Under the terms of the plea

agreement, Kent “knowingly and voluntarily waive[d] his right to . . . [a]ppeal,

collaterally challenge, or move to modify . . . his sentence as imposed by the [district

court] and the manner in which the sentence [wa]s determined, provided the sentence

[wa]s within or below the advisory guideline range determined by the [district court] to

apply to th[e] case.” App., Vol. 1 at 33. The sole exception to this waiver of appellate

rights provision authorized Kent to “appeal a sentence above the advisory sentencing

guideline range determined by the [district court] to apply to th[e] case.” Id. at 34.

       On February 29, 2008, the probation office submitted to the district court and

parties the presentence investigation report (PSR). The PSR, in a section entitled “Mental

and Emotional Health,” recommended that the district court impose several “special

conditions” on Kent’s computer use, including prohibiting Kent from “possess[ing] or

us[ing] a computer with access to any on-line computer service at any location (including

place of employment) without the prior written approval of the probation officer.” Id.,

Vol. 2 at 14. Although Kent submitted written objections to portions of the PSR, he did

not object to the proposed special conditions.

       At a sentencing hearing conducted on April 9, 2008, the district court sentenced

Kent to a term of imprisonment of 210 months, a term at the bottom of the undisputed

advisory guideline range, to be followed by a five-year term of supervised release. The

district court also “impose[d] as special conditions of supervision the specific conditions

that [we]re identified in . . . the [PSR] that contain[ed] various specific restrictions that

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[we]re tied to the nature of the offense of conviction,” including the prohibition on Kent

possessing or using a computer with access to any on-line computer service, without prior

authorization from his probation officer. Kent asserted no objection to these conditions of

supervised release.

       The district court entered judgment the following day, April 10, 2008. An

amended judgment was subsequently entered on July 7, 2009. Kent filed a notice of

appeal on August 5, 2009.

                                             II

       Kent asserts two challenges on appeal to the sentence imposed by the district court.

First, he contends that the special condition of supervised release prohibiting him from

possessing or using a computer with access to any on-line computer service, without prior

authorization from his probation officer, “is overbroad, and greater than necessary to meet

the goals of supervised release.” Aplt. Br. at 9. Second, Kent contends that his trial

counsel was ineffective for failing to present at the time of sentencing mitigating evidence

regarding Kent’s serious medical conditions. The government asserts, however, and we

agree, that Kent waived his right to appeal his sentence.

       In United States v. Hahn, 359 F.3d 1315, 1324 (10th Cir. 2004) (en banc), we

“consider[ed] how we should resolve appeals brought by defendants who have waived

their appellate rights in a plea agreement.” We ultimately adopted a three-prong analysis

focusing on (1) whether the disputed appeal falls within the scope of the waiver of

appellate rights, (2) whether the defendant knowingly and voluntarily waived his

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appellate rights, and (3) whether enforcing the waiver would result in a miscarriage of

justice. Id. at 1325. We proceed to apply that analysis here.

                                   Scope of Kent’s waiver

       The scope of Kent’s waiver of appellate rights was quite broad. As noted, Kent

waived his right to appeal “his sentence as imposed by the [district court] . . . provided the

sentence [wa]s within or below the advisory guideline range determined by the [district

court] to apply to [his] case.” ROA, Vol. 1 at 33. In other words, the plea agreement

expressly precluded any appeal of Kent’s sentence unless the “sentence [was] above the

advisory sentencing guideline range determined by the [district court] to apply to th[e]

case.” Id. at 34.

       Because the sentence imposed by the district court fell within the scope of the

undisputed advisory guideline range, Kent is thus prohibited by the waiver of appellate

rights from asserting any challenge to his sentence. Although Kent argues in reply to the

government’s assertion of Hahn that the waiver does not prohibit constitutional

challenges to his sentence, we find no support for such a conclusion in the language of the

plea agreement. Thus, we conclude that both of the contentions asserted by Kent on

appeal fall within the scope of the prohibition: the first challenge seeks to overturn a

special condition of supervised release, which is clearly “part of the sentence,” United

States v. Sandoval, 477 F.3d 1204, 1207 (10th Cir. 2007), and the other challenge seeks

to overturn the term of imprisonment imposed by the district court.




                                              5
                        Knowing and voluntariness of the waiver

       “We can only enforce appeal waivers that defendants enter into knowingly and

voluntarily.” Hahn, 359 F.3d at 1328. A defendant challenging the validity of an

appellate waiver “bears the burden” of proving he “did not knowingly and voluntarily

enter into his plea agreement.” Id. at 1329. Here, Kent makes no such assertion.

Moreover, our own independent review of the record persuades us there is no basis for

concluding that the waiver of appellate rights contained in the plea agreement was not

entered into by Kent knowingly and voluntarily. In particular, the plea agreement states

that Kent “knowingly and voluntarily waiv[ed] his right” to appeal his sentence, ROA,

Vol. 1 at 33, and the record “reveals an adequate colloquy under Federal Rule of Criminal

Procedure 11.” Sandoval, 477 F.3d at 1207. During the plea colloquy, Kent

acknowledged his understanding that, by pleading guilty under the terms of the plea

agreement, he waived his right to appeal his sentence “provided the Court d[id] not vary

above the advisory guideline range found to apply.” ROA, Vol. 3 at 17. Kent had notice

of the challenged special condition of supervised release which was initially proposed in

the PSR and then adopted by the district court at sentencing. We again note that Kent

raised no objection to the special conditions proposed in the PSR, nor did he object at

sentencing.

                                  Miscarriage of justice

       “We will enforce [Kent’s] appellate waiver unless we find that the enforcement of

the waiver would constitute a miscarriage of justice.” Id. The term “miscarriage of

                                             6
justice” carries “a narrow meaning in this context.” Sandoval, 477 F.3d at 1208.

Specifically, a miscarriage of justice will occur in this context only if: (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 the statutory maximum; or (4) the waiver is otherwise unlawful. Id.

       Our independent review of the record on appeal confirms that none of these

unusual circumstances exist here. Although Kent appears to assert the presence of the

second and fourth of these circumstances, we disagree. Nothing in the record supports a

conclusion that Kent’s counsel was ineffective in negotiating the terms of the plea

agreement, including the waiver provisions. Nor does the record support a conclusion

that the waiver was unlawful. Indeed, such waivers are quite common and have been

routinely affirmed by this court. E.g., United States v. Elliott, 264 F.3d 1171, 1173 (10th

Cir. 2001). Accordingly, we conclude that enforcing Kent’s waiver of appellate rights

would not constitute a miscarriage of justice.

                                          Conclusion

       “Because we are satisfied that the current appeal is within the scope of [Kent’s]

waiver, that the waiver was knowing and voluntary, and that enforcing the waiver would

not result in a miscarriage of justice, we enforce [Kent’s] waiver and dismiss the appeal.”

Hahn, 359 F.3d at 1329.




                                               7
The appeal is DISMISSED.


                               Entered for the Court


                               Mary Beck Briscoe
                               Circuit Judge




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