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

                            FOR THE TENTH CIRCUIT                          January 24, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-2124
                                                   (D.C. No. 1:12-CR-03012-JMC-1)
 MARC TAPIA, a/k/a Mark Anthony                                (D. N.M.)
 Russel, a/k/a Mark Lovato, a/k/a Anthony
 Tapia,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, MATHESON, and MORITZ, Circuit Judges.
                  _________________________________

      Marc Tapia pleaded guilty to one count of being a felon in possession of a

firearm and ammunition. He was sentenced to 26 months in prison, which was below

the Sentencing Guidelines range of 30 to 37 months.1 Although his plea agreement

contained an appeal waiver, he appealed. The government has moved to enforce the

appeal waiver under United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004)

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


      *
         This order and judgment is not binding precedent, except under the doctrines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.
      1
        Because of a long delay between the time Mr. Tapia pleaded guilty and when
he was sentenced, he is scheduled to be released from prison on February 11, 2019.
      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.” Id. at 1325. We need not address the first two

conditions because Mr. Tapia does not challenge them. See United States v. Porter,

405 F.3d 1136, 1143 (10th Cir. 2005). His sole argument is that enforcing the waiver

would result in a miscarriage of justice.

      In Hahn, we explained that a miscarriage of justice occurs “[1] where the

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.” 359 F.3d at 1327 (internal quotation marks

omitted). We further explained that “enforcement of an appellate waiver does not

result in a miscarriage of justice unless enforcement would result in one of the four

situations enumerated” above. Id.

      Mr. Tapia contends he was denied his right to allocute at his sentencing

hearing. He asserts that “[t]he Court should pierce through an appellate waiver under

the ‘otherwise unlawful’ prong of Hahn where the defendant/appellant seeks to assert

an error on appeal that seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.” Resp. to Mot. to Enf. at 4-5 (internal quotation marks

omitted). But the problem with Mr. Tapia’s argument is that the “otherwise

unlawful” exception “looks to whether the waiver is otherwise unlawful, not to

                                            2
whether another aspect of the proceeding may have involved legal error.” United

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

marks omitted); see also United States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir.

2007) (“An appeal waiver is not ‘unlawful’ merely because the claimed error would,

in the absence of the waiver, be appealable. To so hold would make a waiver an

empty gesture.”).

      In support of his argument, Mr. Tapia spends most of his brief discussing the

importance of the right of allocution. But he fails to show that any aspect of his

appeal waiver was unlawful. We agree with Mr. Tapia that the right to allocute is an

important part of the sentencing process, but “[i]t has long been established that a

criminal defendant may waive many fundamental procedural and substantive rights,

both constitutional and statutory.” United States v. Mitchell, 633 F.3d 997, 1001

(10th Cir. 2011). Even assuming there was plain error involving the denial of

Mr. Tapia’s right to allocute, we have held the “otherwise unlawful” exception to be

inapplicable to errors that are distinct from the waiver itself. See United States v.

Polly, 630 F.3d 991, 1001-02 (10th Cir. 2011); United States v. Shockey,

538 F.3d 1355, 1357-58 (10th Cir. 2008); Smith, 500 F.3d at 1212-13.

      Because Mr. Tapia has not argued that his appeal waiver was otherwise

unlawful, he has failed to show that enforcing the waiver would result in a




                                            3
miscarriage of justice. Accordingly, we grant the motion to enforce and dismiss this

appeal. We deny as moot Mr. Tapia’s request to expedite his appeal.


                                          Entered for the Court
                                          Per Curiam




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