                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS                 April 9, 2008

                            FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 07-3334
                                               (D.C. No. 6:07-CR-10028-MLB)
    EUGENE W. NICHOLSON,                                  (D. Kan.)

                Defendant-Appellant.



                            ORDER AND JUDGMENT *


Before MURPHY, O’BRIEN, and HOLMES, Circuit Judges.



         On June 4, 2007, defendant Eugene W. Nicholson pleaded guilty to a

two-count Information charging him with one count of possession with intent to

distribute five grams or more of cocaine base and one count of forfeiture of

$2,017.54 in United States currency. The written plea agreement between

Nicholson and the United States provides that Nicholson “knowingly and


*
      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 This order and judgment is not binding precedent, except under the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.
voluntarily waives any right to appeal or collaterally attack any matter in

connection with this prosecution, conviction and sentence.” Plea Agrmt. at 5, ¶ 9.

More specifically, he “knowingly waives any right to appeal a sentence imposed

which is within the guideline range determined appropriate by the court. . . . In

other words, [he] waives the right to appeal the sentence imposed in this case

except to the extent, if any, the court departs upward from the applicable

sentencing guideline range determined by the court.” Id. at 5-6, ¶ 9.

      The district court imposed a sentence at the bottom of the advisory

guideline range. Despite the waiver of appellate rights in the plea agreement,

Nicholson then filed a notice of appeal. His docketing statement reflects that he

desires to appeal his sentence because he believes it is too harsh. Seeking to

enforce the waiver of appellate rights contained in the plea agreement, the United

States has moved to dismiss this appeal pursuant to United States v. Hahn,

359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).

      In determining whether to dismiss an appeal based on a waiver of appellate

rights, 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.

             To prove that enforcement of an appellate waiver would result
      in a miscarriage of justice, a defendant must establish at least one of
      four circumstances: (1) reliance by the court on an impermissible

                                          -2-
      factor such as race in the imposition of the sentence; (2) ineffective
      assistance of counsel in connection with the negotiation of the
      waiver; (3) the sentence exceeds the statutory maximum; or (4) the
      waiver is otherwise unlawful and seriously affects the fairness,
      integrity, or public reputation of judicial proceedings.

United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005).

      In his response to the government’s motion, Nicholson does not dispute that

his appeal falls within the scope of the appeal waiver, but he does contend both

that he did not knowingly and voluntarily waive his right to appeal and that

enforcing the waiver would result in a miscarriage of justice. First, he argues that

he did not knowingly and voluntarily waive his right to appeal because the plea

agreement failed to include certain information about the calculation of his

sentence that was critical to a meeting of the minds.

      Nicholson admitted in the plea agreement to possessing with intent to

distribute a total of 14.24 grams of cocaine base and to possessing $2,017.54,

which was derived from or was intended to be used to facilitate the commission

of his possession with intent to distribute the drugs. To calculate the base offense

level for Count 1, the presentence report converted the $2,017.54 of currency into

a cocaine base equivalent and then added that to the 14.24 grams of cocaine base

to arrive at a total amount of cocaine base. 1

1
      Application note 12 to U.S.S.G. § 2D1.1 provides in pertinent part as
follows:

      Types and quantities of drugs not specified in the count of conviction
                                                                     (continued...)

                                           -3-
         Nicholson argues that neither the plea agreement nor the court’s plea

colloquy informed him of the possibility that the currency would be converted

into drugs and he would be sentenced on that hypothetical quantity of drugs rather

than the quantity to which he admitted in the plea agreement. He contends there

was no meeting of the minds about what quantity of drugs he was pleading guilty

to nor about how the currency would be converted into a drug equivalency, so his

appeal waiver was neither knowing nor voluntary.

         Nicholson’s arguments are neither factually nor legally supportable. First,

there is no question about the amount of drugs to which he pleaded guilty. The

plea agreement states that on August 4, 2006 police officers found him in

possession of approximately 6.88 grams of cocaine base and on December 23,

2006, they found him in possession of approximately 7.36 grams of cocaine base

and 5.77 grams of marijuana. Plea Agrmt. at 2, ¶ 2. Nicholson pleaded guilty to

possessing with the intent to distribute the cocaine base found in his possession

on August 4 and December 23, id., which totals 14.24 grams.


1
    (...continued)
          may be considered in determining the offense level. See
          § 1B1.3(a)(2)(Relevant Conduct). Where there is no drug seizure or
          the amount seized does not reflect the scale of the offense, the court
          shall approximate the quantity of the controlled substance. In
          making this determination, the court may consider, for example, the
          price generally obtained for the controlled substance . . . .

Nicholson also admitted to possessing 5.77 grams of marijuana, but because that
amount was so minimal, it did not affect the base offense level determination.

                                            -4-
      What Nicholson is essentially arguing is that when he pleaded guilty, he

did not know how his sentence would be calculated, and he did not agree to the

method used, so his waiver of his right to an appeal could not have been knowing

and voluntary. But he did not have to know how his sentence would be calculated

in order to agree to waive his right to appeal it.

      The plea agreement recites the parties’ desire that the United States

Sentencing Guidelines (U.S.S.G.) would apply, it acknowledges that the sentence

to be imposed will be determined solely by the district court, and it acknowledges

that uncharged related criminal activity as well as conduct charged in any

dismissed counts may be considered as relevant conduct in calculating the

sentence under the guidelines. The plea agreement also recites Nicholson’s

understanding that if the court accepts his plea but imposes a sentence with which

Nicholson does not agree, Nicholson cannot withdraw his plea.

      At the plea colloquy the court informed Nicholson that it did not know

what sentence it would impose and that it could not know what sentence it would

impose until it saw the presentence report. The court also advised Nicholson that

although his counsel may have discussed his views of likely sentencing with

Nicholson, his counsel could not possibly know what sentence Nicholson would

receive either. The court made it clear to Nicholson before it accepted his plea

that Nicholson was pleading guilty without knowing how long a sentence he




                                           -5-
would receive, except that it would be somewhere between the statutory minimum

of five years and the statutory maximum of forty years.

      The district court questioned Nicholson thoroughly about his understanding

of the plea agreement, including the factual basis for the plea stated in the

agreement, how his sentence would be determined, and the appeal waiver. With

regard to the latter, the court explained:

      Paragraph 9 sets forth your agreement that you will not appeal from
      your conviction and sentence, nor will you come back at a later date
      and ask me to reopen your case under Section 2255 or Rule 60(b).
      Basically the effect of Paragraph 9 is that you will not ask any court
      anywhere at any time for any reason to review what happens to you
      in this court in terms of your convictions and sentence. Do you
      understand that?

Tr. of Plea Hrg. at 10-11. Nicholson responded, “Yes, Your Honor.” Id. at 11.

Just before Nicholson entered his guilty plea, the court again quizzed Nicholson

about his understanding of the rights he was giving up by pleading guilty, stating,

in part, “And for all practical purposes, you’re giving up your right to appeal. Do

you understand the rights you’re giving up?” Id. at 15. Nicholson again

responded affirmatively.

      The plea agreement recites that Nicholson “is entering into the agreement

and is pleading guilty because [he] is guilty and is doing so freely and

voluntarily.” Plea Agrmt. at 8, ¶ 15. And after Nicholson entered his guilty plea

on the record, the district court found that he had made his plea “freely,

voluntarily, and because he is guilty as charged; not out of ignorance, fear,

                                             -6-
inadvertence or coercion; and with a full understanding of the consequences.” Tr.

of Plea Hrg. at 15.

      As we explained in Hahn, a defendant need not “know with specificity the

result he forfeits before his waiver is valid.” 359 F.3d at 1327. “The law

ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the

defendant fully understands the nature of the right and how it would likely apply

in general in the circumstances–even though the defendant may not know the

specific detailed consequences of invoking it.” Id. (brackets and quotation

omitted). Id. Thus Nicholson did not need to know exactly how his sentence

would be calculated in order to waive his right to appeal any aspect of his

sentence.

      When determining whether a waiver of appellate rights was knowing and

voluntary, we look predominantly at two factors: “whether the language of the

plea agreement states that the defendant entered the agreement knowingly and

voluntarily,” and whether there was “an adequate Federal Rule of Criminal

Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. Both factors clearly establish

that Nicholson’s waiver of his right to appeal was knowing and voluntary.

      And Nicholson’s conduct following the entry of his plea further supports

our determination. After the presentence report was issued, Nicholson’s counsel

reviewed the report with him and then sought and received a delay in sentencing

so that he could conduct research and possibly file objections to the presentence

                                         -7-
report. The sentencing was delayed from August to October and then again to

November 2007. Nicholson’s counsel did not, however, file any objections to the

presentence report. 2

      At the sentencing hearing, the district court questioned Nicholson directly

about the presentence report. Nicholson said that he had reviewed the report and

had discussed it with his attorney and that there was nothing in the report that he

wished to change or correct. Nicholson also said that he was satisfied with the

way his attorney had handled his case. At the request of both Nicholson’s

counsel and the government, the district court imposed a sentence at the bottom of

the guideline range in accordance with the base offense level and criminal history

calculations set forth in the presentence report.

      Our review of the plea agreement and Nicholson’s statements in open court

establishes that his waiver of appellate rights was both knowing and voluntary.

      Nicholson also argues that enforcement of the waiver would result in a

miscarriage of justice. He contends that his sentence is unconstitutional because

he was sentenced for possession of an amount of drugs to which he did not admit

and of which he was not found guilty by a jury, in violation of United States v.

Booker, 543 U.S. 220 (2005). Further, he contends that it offends the notion of

2
      The final delay in sentencing gave Nicholson the benefit of the November
2007 amendments to the guidelines that lowered the offense levels for various
cocaine base offenses. These amendments had the effect of lowering the bottom
of Nicholson’s advisory guideline range by 24 months and lowering the top of the
range by 30 months.

                                         -8-
judicial fairness to sentence a defendant for possession of an amount of drugs that

was never proven by the government. He notes that the price per gram that the

government used to calculate the cocaine base equivalency of the currency in his

possession may not bear any relation to the true price per gram that Nicholson

charged his customers and, therefore, may not reflect the true weight of the drugs

he sold to acquire the currency.

      Nicholson’s arguments do not support a miscarriage-of-justice exception to

enforcement of his appeal waiver. They concern only the lawfulness of his

sentence and do not challenge the lawfulness of the appeal waiver itself. “The

relevant question, however, is not whether [defendant’s] sentence is unlawful . . .,

but whether . . . his appeal waiver itself [is] unenforceable.” Porter, 405 F.3d at

1144 (holding alleged Booker error does not make appeal waiver unenforceable).

To hold that alleged errors in calculating Nicholson’s sentence make his appeal

waiver unlawful would nullify the waiver based on the very sort of claim it was

intended to waive. Nicholson has not shown that enforcement of the waiver

would seriously affect the fairness, integrity, or public reputation of the judicial

proceedings.

      The sentence imposed by the district court complied with the terms of the

plea agreement and with the understanding of the plea that Nicholson expressed at

the plea hearing. Nicholson has not demonstrated that his appeal falls outside the

scope of the appeal waiver, that he did not knowingly and voluntarily agree to the

                                          -9-
appeal waiver, or that it would be a miscarriage of justice to enforce the waiver.

Accordingly, the United States’ motion to enforce the waiver of appellate rights is

GRANTED and the appeal is DISMISSED.



                                       ENTERED FOR THE COURT
                                       PER CURIAM




                                         -10-
07-3334 U.S. v. Nicholson

J. O’BRIEN, concurring.



      A notice of appeal was filed almost before the ink was dry on Nicholson’s

plea agreement waiving his right to appeal. In spite of his disregard of the

agreement he signed (and told the district judge he understood), he expects to

preserve the government’s concession — dropping one count of carrying a firearm

in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1), which, upon

conviction, carries a mandatory consecutive sentence of at least five years. The

practice is becoming all too familiar.

      Nicholson claims there was no “meeting of the minds” in the plea

agreement because he did not know how much crack cocaine would be attributed

to him. 1 From that dubious premise he argues: 1) he did not knowingly and

intelligently enter into the agreement and, in striking hyperbole, 2) enforcing the

waiver would result in a miscarriage of justice. His arguments are contrary to our

precedents (and the reasoning of the Supreme Court) and thus unworthy of serious

attention; frivolous. See Anders v. California , 386 U.S. 738, 744 (1967) (legal

points not arguable on the merits are frivolous); United States v. Heavrin, 330

F.3d 723, 729 (6th Cir. 2003) (defining a “frivolous position” as “one lacking a


1
 The point has taken on dramatic, albeit late blooming, importance in
Nicholson’s papers. No objection was raised in the district court to the attribution
rules or the method of computation in the Presentence Investigation Report.
reasonable legal basis”); see also Coleman v. Comm’r, 791 F.2d 68, 71 (7th Cir.

1986) (“A petition to the Tax Court, or a tax return, is frivolous if it is contrary to

established law and unsupported by a reasoned, colorable argument for change in

the law. This is a standard applied under Fed. R. Civ. P. 11 for sanctions in civil

litigation, and it is the standard we have used for the award of fees under 28

U.S.C. § 1927 and the award of damages under Fed. R. App. P. 38.”).

      The methodology for attributing drug amounts is set out in the guidelines

(which Nicholson and the government jointly asked the court to apply). In United

States v. Hahn, we rejected the argument that “a defendant can never knowingly

and voluntarily waive his appellate rights because he cannot possibly know in

advance what errors a district court might make in the process of arriving at an

appropriate sentence.” 359 F.3d 1315, 1326 (10th Cir. 2004) (en banc). We held

this analysis “improperly focus[es] on the prospective result of the sentencing

proceeding rather than the right relinquished.” Id. A defendant need “not know

the specific detailed consequences of invoking [a waiver]” in order for it to be

knowing and intelligent. United States v. Ruiz, 536 U.S. 622, 629 (2002); see

also United States v. Montano, 472 F.3d 1202, 1205 (10th Cir.), cert. denied, 128

S.Ct. 224 (2007) (expressly declining to adopt a rule that an appeal waiver is

unenforceable when defendant did not know what the sentencing range would be

at the time she entered into the plea agreement). “A defendant is not entitled to

withdraw his plea merely because he discovers long after the plea has been



                                           -2-
accepted that his calculus misapprehended . . . the likely penalties attached to

alternative courses of action.” Brady v. United States, 397 U.S. 742, 757 (1970).

      The government is expected to scrupulously abide a plea agreement. See

Santobello v. N.Y., 404 U.S. 257, 262 (1971) (“[W]hen a plea rests in any

significant degree on a promise or agreement of the prosecutor, so that it can be

said to be part of the inducement or consideration, such promise must be

fulfilled.”); United States v. Scott, 469 F.3d 1335, 1339 (10th Cir. 2006) (same).

Yet, Nicholson chooses to selectively ignore parts of the agreement and hopes to

do so with impunity. Is it because he thinks there can be, or more accurately, will

be, no attendant consequences? Not necessarily; the fairness coin has two sides.

Perhaps the government should seek to set aside the plea agreement and proceed

with the case as originally charged.




                                         -3-
