FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  January 8, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 08-4111
                                               (D.C. No. 1:06-CR-00027-DB-1)
    RUSSELL WAGHER,                                       (D. Utah)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, EBEL, and HARTZ, Circuit Judges.



         Russell Wagher pleaded guilty to one count of using a communication

facility to facilitate a conspiracy to manufacture marijuana in violation of

21 U.S.C. § 843(b). His plea agreement stipulated that he would be sentenced to

twenty-four months of imprisonment. The district court approved the stipulated

sentence and imposed it. Mr. Wagher’s plea agreement also contained a waiver of



*
      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 This order and judgment is not binding precedent, except under the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.
his right to appeal. Nonetheless, Mr. Wagher appealed. The government has

moved to enforce the appeal waiver pursuant to United States v. Hahn, 

(10th Cir. 2004) (en banc) (per curiam). Mr. Wagher has responded and the

government has filed a reply.

      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 

.

                                Within Scope of Waiver

      The first Hahn factor is whether the appeal falls within the scope of the

appellate waiver. 

seeks to appeal his sentence. His statement in

advance of guilty plea reads:

             8. I know there is no appellate review of any lawful
      sentence imposed under a plea of guilty. I also know I may appeal
      the sentence imposed upon me in this case only if the sentence is
      imposed in violation of law or, in light of the factors listed in
      18 U.S.C. Section 3553(a), the sentence is unreasonable.
             ...
             10. I fully understanding my limited right to appeal my
      sentence, as explained above, and in consideration of the concessions
      and/or commitments made by the United States in this plea
      agreement, I knowingly, voluntarily and expressly waive my right to
      appeal any sentence imposed upon me, and the manner in which the
      sentence is determined, on any of the grounds set forth in Title 18,
      United States Code, Section 3742 or on any ground whatever, except
      I do not waive my right to appeal (1) a sentence above the maximum
      penalty provided in the statute of conviction . . .; and (2) a sentence
      above the high-end of the guideline range as determined by the
      District Court at sentencing, or, in the event that no such

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      determination is made by the District Court, a sentence above the
      high-end of the guideline range as set forth in the final presentence
      report.
             ...
             I further understand and agree that the word “sentence”
      appearing throughout this waiver provision is being used broadly and
      applies to all aspects of the Court’s sentencing authority, including,
      but not limited to, (1) sentencing determinations; (2) the imposition
      of imprisonment, fines, supervised release, probation, and any
      specific terms and conditions thereof; (3) any orders of restitution;
      and (4) any orders of forfeiture.

Aplt. Resp., Exh. 1 at 3, ¶¶ 8, 10.

      Mr. Wagher argues that in paragraph 8 he retained the ability to appeal a

sentence that is unreasonable in light of the factors listed in 18 U.S.C. § 3553(a).

It is apparent, however, that paragraph 8 is a description of the right to appeal

that Mr. Wagher would have had in the absence of the paragraph 10 waiver, not

an exception to that waiver.

      Mr. Wagher also argues that the prosecution misrepresented the quantity of

contraband involved, and concludes that “[b]ecause the prosecution

misrepresented the quantity of contraband to both Wagher and the Court, the

Court in fact sentenced Wagher above the maximum penalty allowed by statute.”

Aplt. Resp. at 6. This argument confuses the statutory maximum with the

maximum under the advisory Sentencing Guidelines. By the plain terms of the

agreement, the statutory maximum is the maximum provided in the statute of

conviction. See United States v. Porter, 

, 1142-43 (10th Cir. 2005).

The statutory maximum is four years, regardless of contraband quantity. See

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21 U.S.C. § 843(d)(1); see also Aplt. Resp., Exh. 1 at 1 ¶ 2 (reciting the statutory

maximum of four years of imprisonment). Mr. Wagher’s sentence was only

one-half of the statutory maximum penalty.

      As for the other potential exception to the waiver, the district court did not

calculate a Guidelines range. The twenty-four-month sentence, however, fell well

below the Guidelines range set forth in the presentence report. 

at 12

¶ 50. Accordingly, this appeal falls within the scope of the appellate waiver.

                          Knowing and Voluntary Waiver

      In determining whether Mr. Wagher’s appeal waiver was made knowingly

and voluntarily, we consider “whether the language of the plea agreement states

that [he] entered the agreement knowingly and voluntarily” and whether there is

“an adequate Federal Rule of Criminal Procedure 11 colloquy.” 

. Mr. Wagher bears the “‘burden to present evidence from the record

establishing that he did not understand the waiver.’” 

(quoting United

States v. Edgar, 

, 872-73 (10th Cir. 2003)).

      The plea agreement appeal waiver states that the waiver is knowing and

voluntary. Aplt. Resp., Exh. 1 at 3 ¶ 10. Further, the plea agreement states that

“[n]o threats or promises of any sort have been made” to induce Mr. Wagher’s

plea, and the “decision to enter this plea was made after full and careful thought,

with the advice of counsel, and with a full understanding of my rights, the facts

and circumstances of the case and the consequences of the plea.” 

¶¶ 2, 6.

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Thus, the language of the plea agreement indicates that Mr. Wagher entered the

agreement, including the appeal waiver, knowingly and voluntarily.

       Further, the district court addressed the waiver during the Rule 11 colloquy

with Mr. Wagher: “In this written document, statement by defendant in advance

of plea of guilty, you have indicated that you are giving up your right to appeal

any sentence but, of course, the sentence is going to be 24 months. If you don’t

like that deal, then you don’t need to plead guilty today . . . .” Mot. to Enforce.

Attach. B at 6. Later, the waiver was discussed again:

       [Prosecutor]: . . . I would just like to make sure that the defendant
       understands that there is an appellate waiver in this case. You may
       have missed that, Your Honor. We talked about that before, but I
       wanted to make sure that that was on the record.
       THE COURT: I already did, I thought.
       [Defense Counsel]: You did.
       THE COURT: You know you can’t appeal your sentence, correct?
       MR. WAGHER: Yes.
       THE COURT: You have waived that right.

       Mr. Wagher argues that the government misled him “as to the actual

quantity of contraband with which he would be sentenced” and that “the

prosecution’s failure to disclose the proper quantity of contraband constituted the

procedural error which rendered the plea agreement infirmed and the contract that

it represents unenforceable.” Aplt. Resp. at 1, 5. These arguments do not

persuade us that the waiver was not knowing and voluntary.




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      First, Mr. Wagher’s arguments regarding the quantity of contraband do not

necessarily mean that his waiver was not knowing and voluntary. There is no

indication in the record that Mr. Wagher’s decision to waive his appellate rights,

or even his decision to enter into the plea agreement as a whole, was based on

knowing the precise quantity of contraband. Mr. Wagher knew that the statutory

maximum was four years of imprisonment. Rather than having the district court

calculate a Guidelines range, Mr. Wagher chose to make the contraband quantity

irrelevant by agreeing to a stipulated sentence. In hindsight, he may believe that

he would have ended up with a lower sentence had the district court calculated a

Guidelines range. But his regret of his decision to rely on a known sentence

rather than an unknown one does not negate the appellate waiver.

      In any event, though, this argument is baseless. Mr. Wagher points out that

his co-defendant received a much shorter sentence and offers his own

suppositions as to the reasons for the disparity in sentencing, primarily that the

sentencing calculation must have involved a greatly reduced quantity of

contraband. Therefore, he concludes, the government must have overstated the

quantity in Mr. Wagher’s case. These suggestions are not supported by the

record, which indicates that the co-defendant’s sentence was the result of his

particular circumstances, including cooperation and substantial assistance, that

persuaded the district court to make a very significant downward departure.

      We conclude that the appellate waiver was knowing and voluntary.

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                                Miscarriage of Justice

      Finally, we consider whether enforcing the waiver would result in a

miscarriage of justice. 

. This element requires

Mr. Wagher to show (a) his sentence relied on an impermissible factor such as

race; (b) ineffective assistance of counsel in connection with the negotiation of

the appeal waiver rendered the waiver invalid; (c) his sentence exceeded the

statutory maximum; or (d) his appeal waiver is otherwise unlawful and the error

“seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” 

(quotation omitted). As discussed above, his sentence

did not exceed the statutory maximum. There is no indication in this record that

it relied on an impermissible factor or that his counsel was ineffective in

connection with the negotiation of the waiver. And there is no indication that the

waiver is otherwise unlawful. We conclude that enforcing the waiver would not

result in a miscarriage of justice.

      The motion to enforce plea agreement is GRANTED and the appeal is

DISMISSED.


                                        ENTERED FOR THE COURT
                                        PER CURIAM




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