                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        March 16, 2006
                                   TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 05-4060
 v.                                             (D.C. No. 03-CR-88-01-TS)
                                                        (D. Utah)
 CAILE E. NOBLE,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, MCKAY, and O’BRIEN, Circuit Judges. **


      Defendant-Appellant Caile E. Noble, pursuant to a plea agreement, pled

guilty to one count of possession with intent to distribute five grams or more of

actual methamphetamine in violation of 21 U.S.C. § 841(a)(1). The district court

applied a carreer offender enhancement under the United States Sentencing

Guidelines Manual (U.S.S.G.) § 4B1.1, and sentenced him to 188 months

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
imprisonment followed by four years of supervised release. He now seeks to

appeal his sentence. The government has moved this court to enforce the

provision in its plea agreement with Mr. Noble waiving his right to appeal the

sentence of the district court. Our jurisdiction arises under 28 U.S.C. § 1291.

Because we hold that Mr. Noble waived his right to appeal his sentence by

knowingly and voluntarily entering into the plea agreement and that government

has not breached the agreement, we grant the government’s motion to enforce the

plea agreement and dismiss the appeal.



                                   Background

      The parties are familiar with the facts in this case, and we need only repeat

those pertinent to our discussion here. On September 9, 2004, Mr. Noble entered

into a plea agreement with the government. The plea agreement contained the

following waiver of appellate rights:

      [Defendant] know[s] that the possible penalty provided by law for a
      conviction of 21 U.S.C. § 841(a)(1) is a minimum of five (5) years,
      and a maximum of forty (40) years imprisonment and/or a two
      million dollar ($2,000,000.00) fine.
                                        ***
      [Defendant] know[s] [he] may appeal a sentence imposed under this
      plea of guilty in the following circumstances: (a) If the sentence was
      imposed in violation of law; (b) If the sentence was a result of an
      incorrect application of the Sentencing Guidelines; or (3) If the
      sentence is greater than the Sentencing Guidelines as to fine or
      imprisonment, term of supervised release or includes a more limiting
      condition of probation or supervised release than the maximum

                                         -2-
      established by the guidelines and is greater than any sentence
      specified in this agreement, if any.

      Fully understanding [Defendant’s] right to appeal [his] sentence, as
      explained above, and in consideration of the concessions and
      commitments made by the United States in this plea agreement,
      [Defendant] knowingly and voluntarily waive [his] right to appeal
      any sentence imposed upon [him], and the manner in which the
      sentence was determined, on any of the grounds in 18 U.S.C. § 3742,
      except [he] [does] not waive [his] right to appeal (1) a sentence
      above the maximum penalty provided in the statute of conviction,
      and (2) an upward departure from the final sentencing guideline
      range determined by the Court.
                                       ***
      The Government agrees to recommend sentencing at the low end of
      the guideline range found applicable.

Aplt. App. at 19-21, 23.

      Before Mr. Noble entered into the plea agreement, Blakely v. Washington,

542 U.S. 296 (2004) was decided. In response to Blakely, many district courts

issued opinions discussing the effect of Blakely on pending federal cases. Of

import here, the district court rendered an opinion in United States v.

Montgomery, 324 F. Supp. 2d 1266 (D. Utah 2004), 1 wherein it made the

following determination:

      [T]his Court . . . will continue to apply the sentencing guidelines, but
      without additional fact-finding by the Court that might result in an
      upward enhancement or departure that would result in a sentence
      above that which would otherwise apply under the guidelines, absent
      those findings. The Court wishes to clarify, however, that


      1
       The Montgomery opinion was authored by District Judge Ted Stewart, the
same judge presiding over this case.

                                         -3-
      enhancements may be constitutionally appropriate under Blakely if
      they are based upon facts admitted by Defendant or found by a jury,
      or if based upon the fact of a prior conviction. See Apprendi v. New
      Jersey, 530 U.S. 466, 476 (2000).

324 F. Supp. 2d at 1271.

      After Mr. Noble entered into the plea agreement, but before he was

sentenced, United States v. Booker, 543 U.S. 220 (2005), was decided. On March

14, 2005, Mr. Noble was sentenced. During sentencing, the district court

examined and adopted the findings of the pre-sentencing report (PSR).

Chronicling Mr. Noble’s extensive criminal history, the PSR recommended a

career offender enhancement under U.S.S.G. § 4B1.1. 2

      The district court found Mr. Noble’s prior convictions qualified for

purposes of § 4B1.1 and that § 4B1.1 applied. As a result, after reducing his

sentence three levels for acceptance of responsibility, § 3E1.1, the district court

concluded Mr. Noble’s total offense level was 31. As such, with a criminal

history category of VI, Mr. Noble’s guideline range was 188 to 235 months. 3 The

government recommended a sentence of 188 months. In line with that


      2
        Apparently two PSRs were prepared. One PSR considered Mr. Noble’s
prior convictions and based thereon recommended a career offender enhancement
under U.S.S.G. § 4B1.1. The other PSR did not consider his prior convictions
and therefore did not recommended a career offender enhancement.
      3
       Absent the career offender enhancement, Mr. Noble’s total offense level
would have been 23. As such, Mr. Noble’s guideline range would have been 92
to 115 months.

                                         -4-
recommendation, the district court sentenced Mr. Noble to 188 months followed

by four years of supervised release.

      On appeal, Mr. Noble contends that the district court erred in applying a

career offender enhancement under U.S.S.G. § 4B1.1. In the alternative, he

argues that the government’s failure to recommend 92 months of incarceration,

instead of 188 months, violated the plea agreement. While denying error, the

government urges that Mr. Noble has waived his right to appeal.



                                       Discussion

I. Waiver of Appellate Rights

      We have both “statutory and constitutional subject matter jurisdiction over

appeals when a criminal defendant has waived his appellate rights in an

enforceable plea agreement.” United States v. Hahn, 359 F.3d 1315, 1324 (10th

Cir. 2004) (en banc). “Given the importance of plea bargaining to the criminal

justice system, we generally enforce plea agreements and their concomitant

waivers of appellate rights.” Id. at 1318.

      A. Timeliness of the Government’s Motion

      As a preliminary matter, Mr. Noble argues that the government’s motion

should be denied as untimely and that this court should proceed to an examination

of the merits of his appeal. His argument centers on the new procedure we


                                          -5-
established in Hahn for the enforcement of plea agreements. 359 F.3d at 1328.

In that case, we announced that 10th Cir. Rule 27.2 would be amended to permit

the government to file a “Motion for Enforcement of the Plea Agreement.” Id.

Rule 27.2 requires a party to file a dispositive motion within fifteen days of the

notice of appeal. 10th Cir. R. 27.2(A)(3). If the motion is filed after fifteen days,

the party must provide explanation for the delay. Id. The government’s motion in

this case was not filed until August 30, 2005, long after the expiration of the

fifteen day period. Nor did it contain an explanation for the delay. As a result,

Mr. Noble contends that the motion is time barred. This argument is foreclosed,

however, by our decision in United States v. Clayton, 416 F.3d 1236, 1238 (10th

Cir. 2005). As we explained in Clayton, “[n]othing in Rule 27.2 provides that a

contention that can be raised by motion must be raised by motion, on pain of

forfeiture.” Id. (emphasis in original). The government is free to forego the

benefit provided by Rule 27.2 and seek enforcement of a valid waiver as part of

its brief on the merits. Id.

      B. Enforcement Analysis

      When determining whether to enforce a particular waiver, we inquire (1)

whether the issue on appeal falls within the scope of the waiver, (2) whether the

defendant knowingly and voluntarily waived his rights, and (3) whether enforcing

a waiver would constitute a miscarriage of justice. Hahn, 359 F.3d at 1325.


                                         -6-
             1. Scope

      In determining the scope of a waiver of appellate rights, we strictly

construe the agreement, reading any ambiguities against the government. Id.

Having carefully reviewed the plea agreement in this case, it is clear that the

waiver of appellate rights contained therein encompasses Mr. Noble’s first issue

on appeal. Mr. Noble waived his right to appeal “any sentence imposed upon

[him], and the manner in which the sentence was determined, on any of the

grounds in 18 U.S.C. § 3742.” Aplt. App. at 21. The waiver contained only two

exceptions, allowing him to appeal: (1) a sentence above the maximum penalty

provided in the statute of conviction, and (2) an upward departure from the final

sentencing guideline range determined by the district court. Id. Because Mr.

Noble’s first issue on appeal is rooted in the district court’s determination of his

sentence and is not within an exception, it is within the scope of the waiver.

             2. Knowing and Voluntary

      When determining whether the defendant has entered into a plea agreement

knowingly and voluntarily, we examine the language of the plea agreement and

look for an adequate Federal Rule of Criminal Procedure 11 colloquy. Hahn, 359

F.3d at 1325. The defendant bears the “burden to present evidence from the

record establishing that he did not understand the waiver.” Id. at 1329 (quoting

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


                                         -7-
both the plea agreement and the transcript of the change-of-plea hearing, we are

satisfied that Mr. Noble’s waiver of appellate rights was knowing and voluntary.

In fact, he does not argue that the language of the agreement and the Rule 11

colloquy were insufficient in this regard. Rather, he argues that at the time he

entered into the plea agreement, Montgomery was controlling law. In turn, he

maintains that he did not knowingly enter into a waiver of appellate rights that

would authorize the district court to apply fact found enhancements to his

sentence. Aplt. Resp. at 8.

      We need not determine whether a defendant’s reasonable reliance on a

district court opinion—not incorporated by direct or indirect reference in his plea

agreement—may render his waiver of appellate rights unknowing because we are

unpersuaded that Montgomery supports Mr. Noble’s position in this case. To be

sure, in Montgomery the district court explained that it would apply the

sentencing guidelines “without additional fact-finding by [it] that might result in

an upward enhancement or departure that would result in a sentence above that

which would otherwise apply under the guidelines, absent those findings.” 324 F.

Supp. 2d at 1271. However, of particular import here, the Montgomery court

went on to clarify that “enhancements may be constitutionally appropriate under

Blakely if they are based upon facts admitted by [d]efendant or found by a jury, or

if based upon the fact of a prior conviction.” Id. ((citing Apprendi, 530 U.S. at


                                         -8-
476) (emphasis added)). The enhancement at issue, U.S.S.G. § 4B1.1, was

applied to Mr. Noble’s sentence based on his prior convictions, precisely the type

of facts that Montgomery warned may be constitutionally permissible for courts to

base enhancements on. 4 Given the Montgomery court’s caution in this regard, we

cannot conclude that Mr. Noble’s alleged reliance on it somehow inhibited him

from knowingly waiving his appellate rights. 5

            3. Miscarriage of Justice

      Finally, in determining whether a waiver of appellate rights is enforceable,

we seek to ascertain whether enforcement will result in a miscarriage of justice.

Hahn, 359 F.3d at 1327. A miscarriage of justice will only result “(1) where the

      4
         After Booker and Shepard v. United States, 125 S. Ct. 1254 (2005), some
uncertainty remained as to whether a defendant has a Sixth Amendment right to
have prior conviction allegations be charged and proven, or admitted to, beyond a
reasonable doubt. For this circuit, such uncertainty was answered in our recent
decision in United States v. Moore, 401 F.3d 1220 (10th Cir. 2005). In Moore,
we held that neither Booker nor Shepard disturbed our holding in United States v.
Dorris, 236 F.3d 582 (10th Cir. 2000), wherein we concluded that even after
Apprendi v. New Jersey, 530 U.S. 466 (2000), a defendant’s prior convictions
need not be charged in an indictment and proven to a jury beyond a reasonable
doubt. Moore, 401 F.3d at 1223-24.
      5
        Mr. Noble notes that “an enhancement based on career criminal status
involves the finding of facts beyond the mere existence of a prior conviction.
Other factors, such as the [d]efendant’s age at the time of conviction must be
found through judicial fact finding.” Aplt. Resp. at 8. We need not address this
passing observation, however, because Mr. Noble does not marshal any evidence
that such factual issues are in dispute here or that their resolution would in
anyway render his waiver of appellate rights unknowing. See Hahn, 359 F.3d at
1328; Edgar, 348 F.3d at 872-73 (defendant “has the burden to present evidence
from the record establishing that he did not understand the waiver.”).

                                        -9-
district court relied on an impermissible factor such as race, (2) where ineffective

assistance of counsel in connection with the negotiation of the waiver renders the

waiver invalid, (3) where the sentence exceeds the statutory maximum, or (4)

where the waiver is otherwise unlawful.” Id. (citing United States v. Elliott, 264

F.3d 1171, 1173 (10th Cir. 2001)).

      Mr. Noble asserts that his waiver of appellate rights is not lawful because

the sentence exceeded the statutory maximum. Mr. Noble misconceives Hahn’s

usage of the term statutory maximum. The “statutory maximum” under the Hahn

miscarriage of justice inquiry refers to the statute of conviction. See United

States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005). Here, the relevant statute

of conviction to which Mr. Noble pled was 21 U.S.C. § 841, which in this case

carried a maximum penalty of 40 years. See Aplt. App. 19 (“[Defendant] know[s]

that the possible penalty provided by law for a conviction of 21 U.S.C. §

841(a)(1) is a minimum of five (5) years, and a maximum of forty (40) years

imprisonment and/or a two million dollar ($2,000,000.00) fine.”). Mr. Noble’s

188-month sentence does not exceed the statutory maximum penalty.

      Mr. Noble also asserts that his waiver is “otherwise unlawful” because it

was not made knowingly and thus to enforce it would undermine the integrity of

the judicial proceedings. We have already rejected Mr. Noble’s argument that his

waiver was not knowingly made. We need not revisit that holding.


                                        - 10 -
II. Government’s Breach of the Plea Agreement

      Mr. Noble argues in the alternative that the government’s failure to

recommend 92 months of incarceration, instead of 188 months, violated the plea

agreement. A claim that the government has breached its plea agreement with the

defendant is a question of law that we review de novo. United States v. Peterson,

225 F.3d 1167, 1170 (10th Cir. 2000); United States v. Courtois, 131 F.3d 937,

938 & n.2 (10th Cir. 1997).

      When the government obtains a guilty plea predicated in any significant

degree on an agreement with the prosecutor, that agreement must be fulfilled in

order to maintain the integrity of the plea. See Santobello v. New York, 404 U.S.

257, 262 (1971). In this circuit, we apply a two-part analysis in order to

determine whether the government has breached the plea agreement: (1) we

examine the nature of the promise made by the government; and (2) we assess this

promise against the backdrop of the defendant’s reasonable understanding of that

promise at the time that the plea was entered. United States v. Brye, 146 F.3d

1207, 1210 (10th Cir. 1998). Because general contract principles inform our

inquiry, we consider the express terms of the agreement and we construe any

ambiguities therein against the drafter—i.e., the government. See id.

      There is no breach of the agreement in this case. Quite simply, the express

terms of the plea agreement required the government to “recommend sentencing


                                        - 11 -
at the low end of the guideline range found applicable.” Aplt. App. at 23. The

district court, not the government or Mr. Noble, was vested with the role of

determining the applicable guideline range. See id. at 21 (reserving Mr. Noble’s

right to appeal “an upward departure from the final sentencing guideline range

determined by the Court” (emphasis added)). As noted, the district court

concluded that the applicable guideline range was 188 to 235 months. After the

district court made this determination, the government fulfilled its obligation

under the plea agreement by recommending a sentence at the low end, 188

months. See Aplt. App. at 84 (the government recommending the low end of the

guidelines range). The government did not breach the plea agreement.

      Based on the foregoing, we hold that Mr. Noble’s plea agreement is valid

and enforceable. Accordingly, we GRANT the government’s motion to enforce

the plea agreement and DISMISS the appeal.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




                                        - 12 -
