United States v. Osborn , 37 F. App'x 951 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 14 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-3094
(D.C. No. 00-CR-20113-GTV)
TROY OSBORN, (D. Kansas)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, PORFILIO, Circuit Judge, and BRORBY ,
Senior Circuit Judge.
After examining the briefs and appellate record, 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This order and judgment is not binding precedent, except under the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. The 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.
Defendant Troy Osborn pled guilty to one count of possession of child
pornography under 18 U.S.C. § 2252(a)(4)(B), and was sentenced to forty-one
months’ imprisonment, three years’ supervised release, a special assessment of
$100.00 and a fine of $7,500.00. Osborn contends the district court applied an
incorrect sentencing guideline in calculating his sentence.
The government contends that Osborn waived the right to appeal his
sentence pursuant to his plea agreement. In his plea agreement, Osborn waived
the right to appeal any sentence imposed by the court within the applicable
sentencing guideline range, as determined by the court, but reserved the right to
appeal an upward departure from the sentencing guideline range or an illegal
sentence. See Aplt. App. at 26.
“A defendant’s knowing and voluntary waiver of the statutory right to
appeal his sentence is generally enforceable.” United States v. Black , 201 F.3d
1296, 1300 (10th Cir. 2000) (quotation and alteration omitted). Appellate waivers
are subject to certain exceptions, including where the district court relied on an
impermissible factor such as race, where ineffective assistance of counsel in
connection with the negotiation of the waiver renders the waiver invalid, where
the sentence exceeds the statutory maximum, or where the waiver is otherwise
unlawful. See id. at 1301.
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Osborn appears to contend that the district court’s alleged application of an
improper sentencing guideline amounts to an illegal sentence. Notably, however,
Osborn’s plea agreement explicitly grants the district court the discretionary
power to determine the applicable guideline. Further, the sentence imposed by
the district court does not fall within the definition of an illegal sentence. See
United States v. Neary , 183 F.3d 1196, 1198 (10th Cir. 1999) (defining facially
illegal sentences “as those sentences based on race, gender, or other
considerations contravening clearly established public policy”), and United States
v. Dougherty , 106 F.3d 1514, 1515 (10th Cir. 1997) (defining an illegal sentence
as “one which is ambiguous with respect to the time and manner in which it is to
be served, is internally contradictory, omits a term required to be imposed by
statute, is uncertain as to the substance of the sentence, or is a sentence which the
judgment of conviction did not authorize” (quotation omitted)).
We have examined the sentencing transcript, the plea agreement, and the
entire record on appeal. Osborn does not contend that the plea agreement was not
entered knowingly and voluntarily. The sentence imposed was not an illegal
sentence, and the district court did not depart from the guideline it determined
was applicable. See United States v. Angevine , ___ F. 3d ___, No. 01-6097,
2002 WL 254138, at *5 (10th Cir. Feb. 22, 2002). Consequently, Osborn waived
his right to bring this appeal.
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The appeal is DISMISSED for lack of jurisdiction.
Entered for the Court
Deanell Reece Tacha
Chief Judge
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