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

                           FOR THE TENTH CIRCUIT                        July 23, 2014

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                       No. 14-2043
                                                (D.C. No. 1:10-CR-01761-JB-1)
WILLIS YAZZIE,                                             (D. N.M.)

             Defendant-Appellant.


                           ORDER AND JUDGMENT*


Before HARTZ, HOLMES, and PHILLIPS, Circuit Judges.


      Willis Yazzie was charged with two counts of aggravated sexual abuse in

violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(D). He entered into a plea

agreement with the government, pleading guilty to one count of aggravated sexual

abuse. The plea agreement stated that Mr. Yazzie was waiving his right to appeal his

conviction and the sentence imposed. The district court sentenced Mr. Yazzie to a

term of imprisonment of 188 months.


*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
       Despite the appellate waiver in his plea agreement, Mr. Yazzie filed a notice of

appeal. He seeks to appeal the district court’s denial of his motion to withdraw his

guilty plea. The government has moved to enforce the appeal waiver pursuant to

United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).

       When reviewing a motion to enforce, 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.

Mr. Yazzie concedes that his appeal is within the scope of his appeal waiver.

See Resp. at 13-14. He also admits that the plea agreement stated that he knowingly

and voluntarily entered into the agreement and that there was an adequate Rule 11

plea colloquy. See id. at 14. He contends, however, that enforcing the waiver would

result in a miscarriage of justice.

       To determine whether enforcing the appeal waiver would result in a

miscarriage of justice, we consider whether any of the following four situations have

occurred: (1) “the district court relied on an impermissible factor such as race”;

(2) “ineffective assistance of counsel in connection with the appeal waiver renders

the waiver invalid”; (3) “the sentence exceeds the statutory maximum”; or (4) “the

waiver is otherwise unlawful.” Hahn, 359 F.3d at 1327. In order to satisfy the fourth

situation, “the error must seriously affect the fairness, integrity or public reputation

of the judicial proceedings.” Id. (brackets and internal quotation marks omitted).


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       Mr. Yazzie argues only that the fourth situation is present here, although he

omits the language requiring the waiver to be “otherwise unlawful,” and

characterizes this factor instead as “whether the fairness, integrity or public

reputation of the judicial proceedings are affected.” Resp. at 15. Using this altered

formulation of the fourth situation, Mr. Yazzie argues that “his numerous claims

that he should have been allowed to withdraw his plea, which the district court

denied . . . , seriously affected the fundamental fairness of the judicial proceeding

against him.” Id. at 16.

       Mr. Yazzie has not met his burden of demonstrating that his waiver is

otherwise unlawful. His contention that he should have been allowed to withdraw his

guilty plea and that the district court’s denial of his request affected the fairness of

the proceedings against him does not demonstrate that his appeal waiver was

unlawful. It is simply another way of asserting that the district court erred in denying

his motion to withdraw his plea and is the same assertion of error that he seeks to

raise on appeal. “An appeal waiver is not ‘unlawful’ merely because the claimed

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

waiver an empty gesture.” United States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir.

2007). Mr. Yazzie has not demonstrated that enforcing the appeal waiver would

result in a miscarriage of justice.




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      For the foregoing reasons, we grant the government’s motion to enforce the

appeal waiver and dismiss the appeal.


                                              Entered for the Court
                                              Per Curiam




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