F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                       August 24, 2005
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                        No. 04-7082
 vs.                                              (D.C. No. 03-CR-93-W)
                                                        (E.D. Okla.)
 ARNOLD JOE ALFORD,

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **


       Defendant-Appellant Arnold Joe Alford seeks to appeal his sentence for

possession of pseudoephedrine, a listed chemical, knowing that it would be used

to unlawfully manufacture methamphetamine. 21 U.S.C. § 841(c)(2). He was

sentenced at the bottom of the applicable guideline range of 210 months and two

years supervised release. On appeal, Mr. Alford contends that (1) the government

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
should have been compelled to file a U.S.S.G. § 5K1.1 motion for departure based

upon his substantial assistance, and (2) he should be resentenced based upon

United States v. Booker, 

(2005), having objected to a two-level

firearms enhancement under U.S.S.G. § 2D1.11(b)(1).

      The government addresses the first issue on the merits, but argues the

second is precluded by a waiver of appellate rights in Mr. Alford’s plea

agreement. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a). We affirm the district court regarding the § 5K1.1 motion because the

government does not argue this claim is barred by the waiver. See United States

v. Clark, __ F.3d __, 

, at *2 n.1 (10th Cir. July 29, 2005)

(declining to address waiver issue where government did not raise the issue). We

enforce the plea agreement and dismiss the appeal insofar as the Booker issue

because Mr. Alford waived his right to appeal his sentence by knowingly and

voluntarily entering into the plea agreement.



                                    Background

      The parties are familiar with the facts in this case, and we need only repeat

those pertinent to our discussion here. On November 24, 2003, Mr. Alford

entered into a plea agreement with the government. The agreement detailed the

maximum penalty for his offense and noted that the district court was not bound


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by the agreement or any recommendations by the parties. Aplt. App. 19. Mr.

Alford agreed to cooperate with the government but the agreement specified that a

“motion for departure shall not be made, under any circumstances, unless

defendant’s cooperation is deemed ‘substantial’ by the United States Attorney.”

Further, assuming the government made such a motion, the final

decision regarding whether a sentence reduction was warranted rested with the

district court. 

In addition, the agreement contained the following

waiver of appellate rights:

      Both plaintiff and defendant specifically reserve the right to appeal
      any actual departure from the Presentence Report sentencing range
      found applicable by the Court after ruling on objections, if any, by
      plaintiff and defendant to such sentencing range.

      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
      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

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      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 concessions made by the United States in
      this agreement and the execution of the agreement itself.

22-23. Subsequent to the plea agreement, Mr. Alford changed counsel.

The district court entered judgment in the case on August 12, 2004. Mr. Alford

timely appealed the next day.



                                        Discussion

A. Waiver of the Right to Appeal the Booker Issue.

      We first address the issue of whether Mr. Alford’s appeal waiver is

enforceable. Because the government only argues waiver in relation to Mr.

Alford’s Booker argument, we will so limit our analysis and address the § 5K1.1

departure separately. We have both “statutory and constitutional subject matter

jurisdiction over appeals when a criminal defendant has waived his appellate

rights in an enforceable plea agreement.” United States v. Hahn, 

,

1324 (10th Cir. 2004) (en banc). In determining whether a waiver is enforceable,

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.” 

      Mr. Alford’s Booker argument falls within the scope of his appellate

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waiver. We strictly construe appellate waivers reading any ambiguities therein in

favor of the defendant. 

waivers can encompass Booker

arguments. United States v. Clayton, __ F.3d __, 

, at *1 (10th

Cir. Aug. 1, 2005); United States v. Green, 

, 1189 (10th Cir. 2005)

(citation omitted).

      In Mr. Alford’s plea agreement, he “expressly waive[d] the right to appeal

[his] sentence on any ground, except to challenge an upward departure from the

applicable guideline range as determined by the Court.” Aplt. App. at 22

(emphasis added). Mr. Alford’s arguments that his sentence is in violation of

Booker, based on the district court’s mandatory application of the guidelines and

the enhancement for possession of a firearm under U.S.S.G. § 2D1.11(b)(1), do

not relate to an “upward departure.” His first argument challenges the general

application of the Guidelines, and as in Green, he specifically acknowledged in

the plea agreement that the then-mandatory sentencing guidelines applied to his

case. See Aplt. App. at 16 (“The defendant . . . understand[s] that the United

States Sentencing Commission Guidelines which took effect on November 1,

1987, will apply to the offense to which [he] . . . plead[ed] guilty . . . .”). Thus,

any argument to the contrary falls within his wavier of appellate rights. See

(holding that by agreeing the court was “‘required to

consider the applicable sentencing guidelines’” the defendant accepted the


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“mandatory Guidelines regime that existed before Booker” and therefore his

Booker arguments fell within his broad appellate rights waiver.).

      Further, sentencing “enhancements” and sentencing “departures” are not

synonymous such that Mr. Alford’s waiver exception for upward departures

imposed by the court would also except a sentencing enhancement under U.S.S.G.

§ 2D1.11(b)(1). Compare United States v. Hannah, 

, 940-41 (10th

Cir. 2001) (departures from the guidelines are discretionary with sentencing court

and as such are reviewed for abuse of discretion), with United States v. Cardena-

Garcia, 

, 665 (10th Cir. 2004) (sentencing enhancements involve

application of guidelines and are reviewed de novo). As such, this argument also

falls within the scope of his appeal waiver.

      We also find that Mr. Alford knowingly and voluntarily waived his appeal

rights. In addressing this question, we consider whether the plea agreement

recites that the defendant knowingly and voluntarily entered into the agreement,

and we also consider whether there was a proper Federal Rule of Criminal

Procedure 11 colloquy between the court and the defendant when the plea was

taken. 

(citing 

). Here, Mr.

Alford signed and dated the plea agreement, expressly acknowledging that he had

read and reviewed the agreement with his attorney and that he “fully under[stood]

it and . . . voluntarily agree[d] to it without reservation.” Aplt. App. at 25.


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Likewise, during the plea colloquy, the court reiterated the rights Mr. Alford was

relinquishing, including his right to appeal, and Mr. Alford indicated he was

doing so “voluntarily and completely of [his] own free choice.” Aplt. App. 59.

Thus, Mr. Alford’s plea was knowing and voluntary when taken, and, as we held

in Green, a change in the law subsequent to the plea, including the Court’s

holding in Booker, does not subsequently render the plea unintelligent or

involuntary. 

; accord United States v. Leach, ___F.3d __,

, at *3-4 (10th Cir. Aug. 3, 2005); United States v. Porter, 

, 1145 (10th Cir. 2005).

      Finally, enforcing Mr. Alford’s appeal waiver will not result in a

miscarriage of justice as none of the circumstances identified in Hahn are present

in this 

. There is nothing in the record to indicate that an

impermissible factor was considered by the court in accepting Mr. Alford’s plea

and accompanying waiver, or that Mr. Alford was inadequately represented during

the plea negotiation process. Likewise, Mr. Alford’s resulting sentence was

within the statutory maximum, 1 and the waiver was not otherwise unlawful. As

such, we conclude that the plea agreement and accompanying appeal waiver are


      1
         For purposes of determining whether a waiver of appellate rights will
result in a miscarriage of justice, “statutory maximum” is given its ordinary
meaning. 

. The statute Mr. Alford was convicted
under permits a sentence of up to 20 years. 21 U.S.C. § 841(c)(2). Thus, the 210
month sentence clearly falls within the statutory maximum.

                                         -7-
enforceable against Mr. Alford’s Booker arguments.

      Mr. Alford contends the waiver is unenforceable and that he should be

resentenced because (1) he opted out of his waiver of his right to appeal based

upon the unforeseen decision in Blakely, (2) Booker is to be applied to cases on

direct review, and he preserved Booker error concerning the firearm enhancement,

(3) the district court acknowledged that he had a right to appeal with its advice

that he had ten days to appeal the sentence, (4) the government failed to object

when he stated his intention to appeal, (5) the government failed to timely

challenge his appeal by filing a motion to enforce the waiver pursuant to Hahn,

and (6) the waiver was not knowing and voluntary. We have rejected the last

argument as discussed above and turn to the remaining arguments.

      It is true that counsel advised the court at sentencing that, despite the

waiver of appeal in the plea agreement, Mr. Alford viewed Blakely as beyond his

contemplation and that he should be able to take an appeal. Aplt. App. at 128.

This unilateral statement before the district court does not override the plea

agreement; moreover, it is important to note that this statement was not

accompanied by a motion to withdraw from the plea agreement. Likewise, the

fact that Mr. Alford preserved Booker error before the district court does not

overcome the waiver. The district court’s advice on the time limit for any appeal

was prudent, Fed. R. Crim. P. 32(j)(1)(B); the district court does not decide the


                                         -8-
effect of any waiver on appellate rights–this court does. Insofar as the

government forfeiting its right to stand on the waiver of appeal rights, we recently

held that the government does not lose the ability to enforce an appeal waiver by

failing to file a dispositive motion and instead waiting to address waiver in its

opening brief to this court. Clayton, 

, at *2. We see no reason

to treat the government’s failure to object to a defendant’s stated intent to appeal

any differently.

B. Substantial Assistance Motion.

      Next, we address on the merits Mr. Alford’s contention that in light of the

plea agreement the government acted in bad faith in refusing to make a motion for

a downward departure for substantial assistance under U.S.S.G. § 5K1.1. We

review de novo whether the government has breached the terms of a plea

agreement. United States v. Hawley, 

, 690 (10th Cir. 1996) (citation

omitted). Additionally, as was established by the Supreme Court in Wade v.

United States, 

, 185-86 (1992), we can review whether the

government’s refusal to move for a downward departure was unconstitutionally

motivated. However, unless the plea agreement provides otherwise, “absent an

unconstitutional motive . . ., the prosecutor enjoys complete discretion in

determining whether to file a substantial assistance motion, and . . . a claim

seeking to compel a motion based on a defendant’s view of what he or she deems


                                         -9-
to have been ‘substantial assistance’ will not be entertained.” United States v.

Massey, 

, 824 (10th Cir. 1993) (citing 

).

      Here, the plea agreement provides that “[t]he United States may, but shall

not be required to, make a motion requesting the Court to depart from the

sentencing range called for by the guidelines in the event defendant provides

‘substantial assistance.’ This decision shall be in the sole discretion of the United

States Attorney.” Aplt. App. at 17. From this language it is clear that the

government did not breach the plea agreement by refusing to move for a departure

under § 5K1.1, as it was never required to make such a motion. Mr. Alford has

not alleged that the government’s refusal was based on an unconstitutional

motive; rather, he simply argues the government was wrong in its assessment that

he had not provided substantial assistance. Thus, we lack jurisdiction to review

the government’s decision. 

.

      The judgment is AFFIRMED; that part of the appeal seeking to challenge

the sentence on Booker grounds is DISMISSED given our enforcement of the

waiver of appeal in the plea agreement.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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