United States v. Christensen , 240 F. App'x 280 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 19, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 06-4277
v. (D.C. No. 2:04-CR -40-DS)
(D. Utah)
D IA N E C . C HR ISTEN SEN ,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before T YM KOV IC H, EBEL, and GORSUCH, Circuit Judges.
Defendant Diane C. Christensen pleaded guilty to conspiracy to impede,
impair, obstruct, and defeat the lawful government functions of the Internal
Revenue Service in violation of 18 U.S.C. § 371. Her plea agreement states that
she “knowingly, voluntarily and expressly waive[s] [her] right to appeal any
sentence imposed . . . and the manner in which the sentence is determined, on any
*
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 This order and judgment is not binding precedent, except under the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 high-
end 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 defendant’s 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’s argument is patently without merit. A sentence is illegal if it
“is ambiguous w ith 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.” United States v. Dougherty, 106 F.3d 1514,
1515 (10th Cir. 1997) (quotation omitted); see also United States v.
Gonzalez-H uerta, 403 F.3d 727, 739 n.10 (10th Cir.) (holding term “illegal
sentence” is reserved for instances where sentence exceeds statutory maximum),
cert. denied, 126 S.Ct. 495 (2005). Defendant does not argue, nor do any of the
materials submitted to us suggest, that her sentence is deficient in any such
fundamental respect.
M oreover, as noted, defendant expressly agreed to waive her right to appeal
“the manner in w hich the sentence is determined, . . . , except . . . [for] (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.” Plea Agreement at 3. Defendant’s sentence is
within the statutory maximum and at the low-end of the guideline range. The plea
colloquy demonstrates that defendant knowingly and voluntarily agreed to this
appeal waiver. Thus, the sentence imposed complies with the terms of the plea
agreement and the understanding expressed by the defendant at the plea hearing.
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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 government’s motion to enforce the waiver is GR AN TED
and the appeal is DISM ISSED. The mandate shall issue forthwith.
ENTERED FOR THE COURT
PER CURIAM
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