United States v. Christensen, 10th Cir. (2007)
United States v. Christensen, 10th Cir. (2007)
United States v. Christensen, 10th Cir. (2007)
v.
D IA N E C . C HR ISTEN SEN ,
Defendant-Appellant.
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 This order and judgment is not binding precedent, except under the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.
of the grounds set forth in [18 U.S.C. 3742] or on any ground whatever, except
. . . [for] (1) a sentence above the maximum penalty provided in the statutes of
conviction as set forth in [the plea agreement]; and (2) a sentence above the highend of the guideline range as determined by the district court at
sentencing . . . . M otion to Enforce, Attachment A (Plea Agreement) at 3. The
district court determined a guideline range of 41 to 51 months and imposed a
sentence of 41 months, well within the five-year statutory maximum recited in the
plea agreement and at the low-end of the guideline range. Nonetheless, defendant
appealed. The government has now moved to enforce defendants appeal waiver
under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc). W e grant
the motion and dismiss the appeal.
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 justice. Id. at 1325. Defendant contends that
her appeal does not fall within the terms of the appeal waiver she accepted, and
that her waiver of appeal rights was not knowingly and voluntarily entered
because she did not waive the right to appeal an illegal sentence. She claims that
her sentence is illegal under Blakely v. Washington, 542 U.S. 296 (2004), and
United States v. Booker, 543 U.S. 220 (2005), because the district court may have
enhanced her sentence based on facts not found by a jury.
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Defendant has not demonstrated that her appeal falls outside the scope of waiver
or that she did not knowingly and voluntarily agree to the appeal waiver.
Accordingly, the governments motion to enforce the waiver is GR AN TED
and the appeal is DISM ISSED. The mandate shall issue forthwith.
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