                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            October 26, 2005
                                  TENTH CIRCUIT
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                          No. 04-7093
          v.                                              (E.D. Oklahoma)
 DANNY JAMES GOLDEN,                                  (D.C. No. CR-04-11-5-P)

               Defendant-Appellant.




                            ORDER AND JUDGMENT *



Before EBEL, McKAY, and HENRY, Circuit Judges.


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

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Danny James Golden pleaded guilty to one count of conspiracy to distribute

methamphetamine, in violation 21 U.S.C. § 846. The district court sentenced him


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
to 195 months of imprisonment, 60 months of supervised release, and a $100.00

special assessment. Mr. Golden claims that the district court committed error

under United States v. Booker, 125 S. Ct. 738 (2005), when it found by a

preponderance of the evidence that the underlying crime involved certain drug

quantities that would warrant a higher base offense level under the guidelines.

We conclude that Mr. Golden’s plea agreement waived his right to bring this

appeal, and for the reasons stated below, we affirm his conviction and sentence.

                                I. BACKGROUND

      Co-defendant Olen G. Rambo owned and operated a convenience store

located in Stuart, Oklahoma, and sometime in 1999 began selling large amounts

of pseudoephedrine illegally to co-defendants Tammy and Ernestine Golden. The

demand for pseudoephedrine from Tammy and Ernestine Golden became so large

that eventually Rambo set up post office boxes in Stuart, Krebs, McAlester, and

Calvin, Oklahoma, where he had the pseudoephedrine shipped. Ernestine and

Tammy Golden would then pick up the large quantities of pseudoephedrine from

those locations, and sign the name of Olen Rambo on the delivery sheet. Grand

jury subpoenas were issued to multiple suppliers of pseudoephedrine, tracing back

the large amounts of pseudoephedrine ordered by Olen Rambo and sold to

Ernestine and Tammy Golden.

      In November, 2001, Special Agent Jim Waddell of the Drug Enforcement


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Administration, while acting in an undercover capacity, made a controlled

purchase of methamphetamine in excess of fifty grams from Tammy and Ernestine

Golden; that transaction was captured on video tape. Furthermore, confidential

informants who sold methamphetamine for the Goldens indicated that from 1999

to October 2001, Mr. Golden would use the pseudoephedrine supplied by

Tammy and Ernestine Golden, and purchased from Mr. Rambo, to manufacture

and distribute methamphetamine.

      When Mr. Golden entered his guilty plea, the government agreed to file a

motion for acceptance of responsibility. A written plea agreement was disclosed

to the Court and acknowledged by the defendant. At paragraph 22 of that plea

agreement, Mr. Golden acknowledged that he was waiving any and all appellate

rights except for the right to challenge an upward departure of the sentencing

guidelines.

      The presentence report (“PSR”) recommended that Mr. Golden’s offense

level was 38, minus three points for the government’s motion for acceptance of

responsibility, for a final offense level of 35, placing the defendant’s sentencing

range at 168-210 months. Mr. Golden objected to the PSR, raising concerns

under Blakely v. Washington, 124 S. Ct. 2531 (2004). At the sentencing hearing

the district court overruled the objections and noted: “Based upon defendant’s

failure to object to the factual information contained in the Presentence report, the



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Court finds, by a preponderance of the evidence, that the Base Offense Level

contained in the presentence report at paragraphs 40 and 41 is accurate.

Therefore, the defendant’s objection is overruled.” The district court then

sentenced the defendant to 195 months’ incarceration, and 60 months’ supervised.

                                 II. DISCUSSION

      This court has concluded that a defendant’s waiver of his appellate rights,

made before the Supreme Court issued its opinion in Blakely, is enforceable and

may bar consideration of any claims he may assert under Booker. United States v.

Green, 405 F.3d 1180, 1189 (10th Cir. 2005). The Tenth Circuit “generally

enforces plea agreements and their concomitant waivers of appellate rights.”

United States v. Hahn, 359 F.3d 1315, 1318 (10th Cir. 2004) (en banc). In

considering how to resolve appeals brought by defendants who have waived their

appellate rights in a plea agreement, we must determine (1) if an appeal falls

within the scope of the appellate waiver; (2) whether the defendant’s waiver of

appellate rights was knowing and voluntary; and (3) whether enforcement of the

appellate waiver would result in a miscarriage of justice. Id. at 1325.

      The defendant’s waiver, found on page 11, in paragraph 22 of the plea

agreement, states as follows:

      Defendant expressly waives the right to appeal defendant’s sentence on
      any ground, except to challenge an upward departure from the
      applicable guideline range as determined by the Court. Defendant
      specifically waives any appeal rights conferred by Title 18, United

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      States Code, Section 3742, any post-conviction proceedings, and any
      habeas corpus proceedings. Defendant is aware that Title 18, United
      States Code, Section 3742 affords defendant the right to appeal the
      sentence imposed. Defendant is also aware that the sentence herein has
      not yet been determined by the Court. Defendant is aware that any
      estimate of the probable sentencing range that defendant may receive
      from his attorney, plaintiff, the probation office, or any agents of such
      parties, is not a promise, and is not binding on plaintiff, the probation
      office, or the Court. Realizing the uncertainty in estimating what
      sentence defendant will ultimately receive, defendant knowingly waives
      the right to appeal the sentence (except as to an upward departure) and
      agrees not to contest such sentence in any post conviction proceeding,
      including but not limited to writs of habeas corpus or coram nobis
      concerning any and all motions, defenses, probable cause
      determinations, and objections which defendant has asserted or could
      assert to this prosecution and to the court’s entry of judgment against
      defendant and imposition of sentence, in exchange for the concessions
      made by the United States in this agreement and the execution of the
      agreement itself. 1

(Emphasis supplied).

      1. Language of the agreement

      Clearly, the language of the plea agreement encompasses this appeal. The

government states that broad language of the waiver – that the “defendant

expressly waives the right to appeal defendant’s sentence on any ground, except

to challenge an upward departure from the applicable guideline range as

determined by the court” – clearly demonstrates his intent to waive all potential

issues on appeal, except for the one basis specifically exempted. (Emphasis



      1
         We note that the plea agreement is not in the record. Mr. Golden does
not dispute this recitation of para. 22, taken from the government’s brief, is
correct. See Aple’s Br. at 13.

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added). The defendant does not contest this language is part of the plea

agreement. Because his current argument on appeal does not relate to a challenge

to an upward departure, but merely an enhancement, defendant’s Blakely

argument is within the scope of his waiver. See United States v. Waugh, 207 F.3d

1098, 1101 (8th Cir. 2000) (noting that enhancements and departures are “two

very different concepts”).

      2. Knowing and voluntary

      According to the government, and undisputed by Mr. Golden, he agreed

that the court was “required to consider the applicable sentencing guideline” and

could “depart from those guidelines under some circumstances.” Aple’s Br. at 14.

In so agreeing, he indicated an acceptance of the mandatory guidelines regime

that existed before Booker, rather than a regime in which the guidelines are

advisory.

      In Green, 405 F.3d at 1189, we cited the Eleventh Circuit’s observation

that Booker arguments may fall within the scope of a defendant’s waiver of his or

her appellate rights. See United States v. Grinard-Henry, 399 F.3d 1294, 1296

(11th Cir.) (“[t]he right to appeal a sentence based on Apprendi/Booker grounds

can be waived in a plea agreement. Broad waiver language covers those grounds

on appeal.”) (internal quotation omitted), cert. denied, 125 S. Ct. 2279 (2005). In

Green, we held that all of defendant’s potential arguments on appeal fell within



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the scope of his appellate rights waiver. The same is true here: the record as a

whole reflects that Mr. Golden knowingly and voluntarily waived his appellate

rights, as reflected in the change of plea.

      We have also noted that a defendant’s waiver of his appellate rights is not

otherwise unlawful based on the subsequent issuance of Booker. See United

States v. Porter, 405 F.3d 1136, 1145 (10th Cir. 2005) (“[W]e find the change

Booker rendered in the sentencing landscape does not compel us to

hold the defendant’s plea agreement unlawful . . . . To allow defendants or the

government to routinely invalidate plea agreements based on subsequent changes

in the law would decrease the prospects of reaching an agreement in the first

place, an undesirable outcome given the importance of plea bargaining to the

criminal justice system.”)

      3. Miscarriage of justice

      Finally, we agree with the district court that enforcing Mr. Golden’s waiver

of his appellate rights will not result in a miscarriage of justice. The sentence

imposed did not exceed the statutory maximum of twenty years or the guideline

maximum as provided by the sentencing range calculated. The defendant’s

sentence of 195 months falls well within the range of either.

      Mr. Golden suggests only one reason why the waiver is unenforceable:

Citing Hahn, 359 F.3d at 1328, he notes the government’s failure to file a timely



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motion to enforce the waiver under Tenth Circuit Rule 27.2. However, “[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. United States v. Clayton, 416 F.3d 1236,

1238 (10th Cir. 2005). In Clayton we noted that “[a] Rule 27.2 motion is one

method whereby the government may choose to enforce the waiver, but the rule

does not prevent the government from seeking enforcement through other means,

such as its brief on the merits.” Id. at 1239. Because the government addressed

Mr. Golden’s waiver of appellate rights in its merits brief, Mr. Golden’s argument

thus fails.

                               III. CONCLUSION

       Accordingly, we enforce Mr. Golden’s waiver of his right to appeal, and

DISMISS this appeal.



                                              Entered for the Court,


                                              Robert H. Henry
                                              Circuit Judge




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