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

                           FOR THE TENTH CIRCUIT                        June 11, 2013

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

             Plaintiff-Appellee,

v.                                                        No. 12-2201
                                                 (D.C. No. 1:10-CR-01919-JB-1)
SEAN JOSEPH PETERSON,                                       (D. N.M.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, KELLY and TYMKOVICH, Circuit Judges.


      Following his acceptance of a plea agreement that included a waiver of his

right to appeal, Sean Joseph Peterson pleaded guilty to two federal drug offenses:

(1) possessing with intent to distribute 100 kilograms and more of a mixture and

substance containing a detectable amount of marijuana in violation of 21 U.S.C.




*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
§ 841(a)(1) and (b)(1)(B); and (2) conspiring to possess with intent to distribute 100

kilograms and more of a mixture and substance containing a detectable amount of

marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. At sentencing,

the district court determined that the applicable advisory guidelines sentencing range

was 188 to 235 months imprisonment. The court granted Mr. Peterson a variance,

however, and imposed a below-guidelines sentence of 110 months on each count, to

be served concurrently. Despite the appeal waiver in his plea agreement,

Mr. Peterson is now appealing his sentence. We grant the government’s motion to

enforce the appeal waiver and dismiss this appeal.

                                I. BACKGROUND

      A. The Sentencing Provisions in the Plea Agreement

      In the plea agreement, the government and Mr. Peterson stipulated that his

base offense level under the sentencing guidelines was 26 and that he was entitled to

a three-level reduction for acceptance of responsibility. However, the government

reserved the right “to assert any position or argument with respect to the sentence to

be imposed, including . . . the applicability of . . . adjustments under the guidelines.”

Plea Agreement at 5.1 In addition, Mr. Peterson agreed to the following with regard

to the sentencing stipulations in the plea agreement:

      The Defendant understands that the above stipulations are not binding
      on the Court and that whether the Court accepts these stipulations is a
1
      The plea agreement is attached to the government’s motion to enforce as
Exhibit 1.


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       matter solely within the discretion of the Court after it has reviewed the
       presentence report. Further, the Defendant understands that the Court
       may choose to vary from the advisory guideline sentence. The
       Defendant understands that if the Court does not accept any one or more
       of the above stipulations and reaches an advisory guideline sentence
       different than expected by the Defendant, or if the Court varies from the
       advisory guideline range, the Defendant will not seek to withdraw the
       Defendant’s plea of guilty. In other words, regardless of any
       stipulations the parties may enter into, the Defendant’s final sentence is
       solely within the discretion of the Court.

Mr. Peterson’s Prior Felony Convictions

       As part of the plea agreement, Mr. Peterson agreed that he had previously been

convicted of two felony drug offenses in state court in Kentucky. Mr. Peterson also

agreed that he would “not bring a challenge to the validity or applicability of these

convictions.” 

its part, the government agreed not to file any sentencing

enhancement under 21 U.S.C. § 851 for either of Mr. Peterson’s prior convictions.

       C. The Appeal Waiver

       By signing the plea agreement, Mr. Peterson agreed to the following appeal

waiver:

              The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C.
       § 3742 afford a Defendant the right to appeal a conviction and the
       sentence imposed. Acknowledging that, the Defendant knowingly
       waives the right to appeal the Defendant’s conviction and any sentence
       within or below the applicable advisory guideline range as determined
       by the Court. The Defendant specifically agrees not to appeal the
       Court’s resolution of any contested sentencing factor in determining the
       advisory sentencing guideline range. In other words, the Defendant
       waives the right to appeal both the Defendant’s conviction and the right
       to appeal any sentence imposed in this case except to the extent, if any,
       that the Court may depart or vary upward from the advisory sentencing

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       guideline range as determined by the Court. In addition, the Defendant
       agrees to waive any collateral attack to the Defendant’s conviction
       pursuant to 28 U.S.C. § 2255, except on the issue of ineffective
       assistance of counsel.

The Plea Hearing

       At the commencement of the plea hearing, the magistrate judge asked counsel

for the government to outline the salient provisions in the plea agreement. Among

other matters, counsel for the government then informed the magistrate judge about

the stipulation in the plea agreement concerning Mr. Peterson’s base offense level.

Specifically, counsel stated the following:

              The Defendant has insisted that the United States place the base
       offense level in Paragraph 9(a). The United States has placed that in
       there and accordingly the parties agree that the Defendant’s base offense
       level under the Sentencing Guidelines is 26, pursuant to U.S.
       Sentencing Guideline 2D1.1(c)(7). The United States wants to make it
       clear to the Court that that’s not a stipulation as to the offense level of
       the Defendant in the case at sentencing. That is the base offense level
       before any adjustments, either a downward adjustment for acceptance of
       responsibility or upward adjustment for career offender status. The
       United States asks that this Court inquire if the Defendant understands
       that so there won’t be any contrary misunderstanding at sentencing that
       he was somehow pleading to an Offense Level of 26 for the entire case.

              The Defendant has requested and received a Form 13 PSR. In
       that PSR Probation has correctly noted that his two qualifying felony
       convictions render him a career offender under the guidelines, which the
       United States anticipates will be an Offense Level 34, minus his three
       points for acceptance of responsibility.




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Plea Hrg. Tr. at 3-4.2

       In response to the request by counsel for the government concerning the base

offense level stipulation, the magistrate judge thereafter had the following colloquy

with Mr. Peterson:

             THE COURT: Mr. Peterson, [counsel for the government] has
       asked me to specifically inquire concerning the parties’ inclusion of the
       base offense level of 26 in the Plea Agreement. [Counsel] has explained
       that while the United States has been willing to put 26 as the base
       offense level, from that offense level there can be additions to or
       deductions from that base offense level, depending on various factors
       and conduct.

              Do you understand that?

              THE DEFENDANT: Yes.

              THE COURT: In other words, the United States is not
       stipulating that the only - - that the adjusted level is 26, that is only the
       base level.

              Is that clear?

             THE DEFENDANT: Yes.

magistrate judge also had a colloquy with Mr. Peterson regarding the

appeal waiver to ensure that he understood the scope of the waiver:

              THE COURT: . . . Your Plea Agreement specifically requires
       you to give up your right to appeal, so long as the sentence imposed by
       [the district judge] is at or under the guideline range. Should the Court
       depart upward, you preserve your right to appeal.


2
      The October 19, 2011, plea hearing transcript is attached to the government’s
motion to enforce as Exhibit 2.


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              You are also giving up your right to challenge your conviction or
       your sentence at a later date in what is called a post-conviction
       challenge under 28 U.S.C. Section 2255. You would be giving up that
       right for all reasons except if [your counsel] was constitutionally
       ineffective in his representation in negotiating this Plea Agreement and
       representing you in the negotiations and obtaining the waiver or the
       entry of the plea.

             Do you understand you would be giving up those rights if you
       plead guilty today?

             THE DEFENDANT: Yes.

the magistrate judge asked Mr. Peterson if he understood that he was

“agreeing or admitting that [he has] two prior and valid convictions that are set out

[in the] Plea Agreement.” 

Peterson responded in the affirmative.

       E. Mr. Peterson’s Sentence

       As stipulated by the parties, Mr. Peterson’s base offense level was 26. Based

on Mr. Peterson’s two prior felony convictions, plus a prior misdemeanor conviction

for driving under the influence, his criminal history category was II. However, the

probation office recommended a career offender enhancement pursuant to USSG

§ 4B1.1 because Mr. Peterson had two prior qualifying felony convictions.

Applying the career offender enhancement and a three-level reduction for having

accepted responsibility, Mr. Peterson’s base offense level increased to 31 and his

criminal history category increased to VI, giving him a guidelines sentencing range

of 188 to 235 months imprisonment.



                                         -6-
       At the sentencing hearing, the district court concluded that the sentencing

range set forth in the guidelines was not appropriate for Mr. Peterson’s offenses, and

the court therefore granted Mr. Peterson a downward variance. The court determined

that three factors supported a downward variance. First, the court found that the

career offender enhancement substantially overstated Mr. Peterson’s criminal history.

Second, the court believed that the career offender enhancement overstated his likely

future criminal activity. Third, the court determined that Mr. Peterson’s background,

which included military service and a difficult family up-bringing, counseled in favor

of a variance. In light of these factors, but still taking into consideration the fact that

Mr. Peterson fit squarely into the career offender category as defined by Congress,

the court decided to use a final offense level of 28 and a criminal history category of

IV, which resulted in a guidelines sentencing range of 110 to 137 months

imprisonment. Using this sentencing range, the court then imposed a low-end

sentence of 110 months imprisonment.

                                II. DISCUSSION

       The government has filed a motion to enforce Mr. Peterson’s appeal waiver.

See United States v. Hahn, 

, 1328 (10th Cir. 2004) (en banc)

(per curiam). Under Hahn, in evaluating a motion to enforce an appeal waiver, 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


                                           -7-
of justice.” 

Peterson has conceded that this appeal falls within the

scope of his appeal waiver. Thus, we need only address the second and third prongs

of the Hahn analysis.

      With regard to the second prong, Mr. Peterson has advanced two primary

arguments. First, relying on the Fifth Circuit’s decision in United States v. Roberts,

(5th Cir. 2010), Mr. Peterson argues that the government violated the

plea agreement “[b]y agreeing with the career offender enhancement

recommendation in the presentence report and by supporting a different base offense

level at sentencing than that to which the Government had previously stipulated.”

Aplt. Resp. at 8; see also 

the Government did violate the plea

agreement, just as in Roberts. Defendant’s appeal waiver does not preclude him from

making this argument on appeal.”). We reject this argument, however, because, at

the sentencing hearing, Mr. Peterson’s trial counsel affirmatively waived any

argument under Roberts to the effect that the government violated the plea agreement

in this case. See Sent. Hrg. Tr. at 37-38.3 Given this affirmative waiver, Mr.

Peterson is not entitled to any form of relief on direct appeal based on Roberts, and

this includes plain error review.4 See United States v. Teague, 

, 1314-

15 (10th Cir. 2006).


3
      The April 26, 2012, sentencing hearing transcript is attached to the
government’s motion to enforce as Exhibit 3.
4
       Mr. Peterson has indicated that he “intends to file a habeas petition to raise
ineffective assistance of counsel” concerning his trial counsel’s failure to argue at
                                                                             (continued)
                                         -8-
       Second, Mr. Peterson argues that his “guilty plea was neither knowing nor

voluntary,” and that, “therefore, the waiver within the plea agreement was neither

knowing nor voluntary.” Aplt. Response at 7. According to Mr. Peterson:

       Defendant understood that because the base offense level was explicitly
       stated in the plea agreement, there would be no career enhancement. He
       believed that stating the offense level in the plea agreement worked as a
       safety valve that would allow his case to bypass the career
       enhancement. His understanding was based on federal law in Texas.

Peterson argues that there was an inadequate colloquy during the

plea hearing regarding the possibility of an upward adjustment based on the career

offender enhancement:

              While the plea hearing demonstrates that Defendant understood
       that there could be an addition to, or deduction from, the base offense
       level to which the Government had stipulated, the colloquy does not
       demonstrate that Defendant understood that the Government could
       advocate for an entirely new offense level eight levels higher.

review these arguments only for plain error since Mr. Peterson never

raised them in the district court proceedings. See 

. We see

no plain error here. To begin with, Mr. Peterson’s purported “understanding” of the

base offense level stated in the plea agreement is based on the arguments of his

appellate counsel, and there is no evidentiary record to support his claimed

sentencing that the government violated the plea agreement. Aplt. Resp. at 9.
Although it does not appear that his appeal waiver would bar such a collateral attack,
we express no opinion on that question here. We note, however, that Mr. Peterson is
barred from asserting an ineffective assistance of counsel claim in this direct appeal.
See United States v. Porter, 

, 1144 (10th Cir. 2005).


                                         -9-
understanding. Further, as set forth above, during the plea hearing and in the

presence of Mr. Peterson, counsel for the government asked the magistrate judge to

explain to Mr. Peterson that his base offense level could be adjusted upward based on

the career offender enhancement. See Plea Hrg. Tr. at 3-4. In response to this

request, the magistrate judge proceeded to explain to Mr. Peterson that the base

offense level of 26 could be adjusted upward “depending on various factors and

conduct.” 

Peterson then said “Yes” when the magistrate judge asked

him if he understood that upward adjustments were possible. 

this was an adequate plea colloquy concerning the potential for upward adjustments,

including the career offender enhancement.

      Finally, we do not believe that enforcing Mr. Peterson’s appellate waiver will

result in a miscarriage of justice. Mr. Peterson’s criminal background fell squarely

into the career offender category as defined by Congress, but the district court was

imminently fair to Mr. Peterson in that it varied downward substantially from the

advisory guidelines sentencing range of 188 to 235 months imprisonment.

      The motion to enforce is granted, and this appeal is dismissed.


                                        Entered for the Court
                                        Per Curiam




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