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

                           FOR THE TENTH CIRCUIT                        June 22, 2015

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

             Plaintiff - Appellee,

v.                                                        No. 15-1092
                                               (D.C. No. 1:13-CR-00159-WJM-11)
ARTURO MARTINEZ, a/k/a Tray Crip,                           (D. Colo.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, EBEL and MATHESON, Circuit Judges.


      This matter is before the court on the government’s motion to dismiss

defendant Arturo Martinez’s appeal because it falls within the scope of the appeal

waiver contained in his Plea Agreement. We grant the government’s motion and

dismiss the appeal.

      The defendant pleaded guilty to one count of conspiracy to distribute and

possess with the intent to distribute one or more of the following: (1) 280 grams or


*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
more of a mixture or substance containing a detectable amount of cocaine base (crack

cocaine), and/or (2) 500 grams or more of a mixture or substance containing a

detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii)

and (b)(1)(B)(ii)(II) and 846. The Plea Agreement stated that the mandatory

minimum sentence for this offense is 120 months’ imprisonment. It also provided

that “[t]he parties agree that the defendant’s relevant conduct including that which

was reasonably foreseeable to him, was at least 280 grams of cocaine base but less

than 840 grams of cocaine base.” Mot. to Enforce, Attach. 1 at 8-9. The district

court sentenced the defendant to the mandatory minimum of 120 months’

imprisonment and imposed a term of supervised release with specified conditions.

      In the Plea Agreement, the defendant “knowingly and voluntarily” waived his

right to appeal

      any matter in connection with this prosecution, conviction, or sentence
      unless it meets one of the following three criteria: (1) the sentence
      imposed is above the maximum penalty provided in the statute of
      conviction, (2) the Court, after determining the otherwise applicable
      sentencing guideline range, either departs or varies upwardly, or (3) the
      Court determines that the offense level is greater than 32 and imposes a
      sentence based upon that offense level determination.

The defendant also “knowingly and voluntarily” waived his “right to appeal

the manner in which the sentence is determined on grounds set forth in 18 U.S.C.

§ 3742.” 

filed a notice of appeal. In his docketing statement he

indicates his intent to challenge the length of his sentence and certain conditions of

supervised release imposed by the district court.


                                          -2-
      The government filed a motion to enforce the appeal waiver in the defendant’s

Plea Agreement under United States v. Hahn, 

(10th Cir. 2004)

(en banc) (per curiam). In evaluating a motion to enforce a 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 of justice.”

In response, the defendant does not argue that his appeal falls outside the

scope of the appeal waiver or that his waiver was not knowing and voluntary. We

therefore need not address these issues. United States v. Porter, 

, 1143

(10th Cir. 2005). Rather, the defendant contends that enforcement of his waiver

would result in a miscarriage of justice. See Hahn, 

.

      We will find that enforcement of an appeal waiver results in a miscarriage of

justice only “[1] where the district court relied on an impermissible factor such as

race, [2] where ineffective assistance of counsel in connection with the negotiation of

the waiver renders the waiver invalid, [3] where the sentence exceeds the statutory

maximum, or [4] where the waiver is otherwise unlawful.” 

“This list is

exclusive: enforcement of an appellate waiver does not result in a miscarriage of

justice unless enforcement would result in one of the four situations enumerated

above.” United States v. Polly, 

, 1001 (10th Cir. 2011) (internal

quotation marks omitted).




                                          -3-
       The defendant argues his waiver is “otherwise unlawful” because the district

court’s sentencing errors “seriously affect the fairness, integrity or public reputation

of judicial proceedings.” 

. (internal quotation mark,

alteration, and brackets omitted). He acknowledges that he has the burden to

demonstrate that enforcement of his appeal waiver would result in a miscarriage of

justice. See United States v. Anderson, 

, 959 (10th Cir. 2004).

       In support of his contention, the defendant sets forth his claims of sentencing

error, then asserts without further analysis that these errors affect the fairness,

integrity, and public reputation of the judicial proceeding. The defendant’s argument

fails for at least two reasons. First, his bald assertion that the district court’s errors

result in a miscarriage of justice is insufficiently developed to invoke our review.

Second, his contention fundamentally misunderstands “what must be ‘unlawful’ for a

waiver to result in a miscarriage of justice.” United States v. Sandoval, 

, 1208 (10th Cir. 2007).

       Our inquiry is not whether the sentence is unlawful, but whether the
       waiver itself is unlawful because of some procedural error or because no
       waiver is possible. An appeal waiver is not ‘unlawful’ merely because
       the claimed error would, in the absence of waiver, be appealable. To so
       hold would make a waiver an empty gesture.

“The whole point of a waiver . . . is the relinquishment of

claims regardless of their merit.” 

marks omitted).




                                            -4-
      Having failed to challenge the lawfulness of his appeal waiver, the defendant

has not met his burden to demonstrate a miscarriage of justice. Accordingly, we

grant the government’s motion to dismiss this appeal.1


                                              Entered for the Court
                                              Per Curiam




1
      We have considered the supplemental authority tendered by Appellant and
concluded it does not change our analysis.


                                        -5-