United States v. Green

F I L E D
United States Court of Appeals
Tenth Circuit

MAY 6 2005
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 04-5105
v.

DARVELL SHERROD GREEN,

Defendant - Appellant.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 04-CR-21-02-EA) *

F.L. Dunn, III, Tulsa, Oklahoma, for Defendant-Appellant.

Timothy L. Faerber, United States Attorney’s Office for the Northern District of
Oklahoma, Tulsa, Oklahoma, for Plaintiff-Appellee.

Before EBEL, MCKAY and HENRY, Circuit Judges.

EBEL, Circuit Judge.

After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
 In this direct criminal appeal, we hold that the district court did not have

jurisdiction under Fed. R. Crim. P. 35(a) to resentence Defendant more than seven

days after the court orally imposed an earlier sentence. We also conclude that

Defendant’s waiver of his appellate rights—made before the Supreme Court

issued its opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004)—is

enforceable and bars our consideration of any claims he may assert under United

States v. Booker, 125 S. Ct. 738 (2005).

Defendant pled guilty to interfering with interstate commerce by robbery, in

violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2, and brandishing a firearm

during a crime of violence, in violation of 18 U.S.C. § 924(c). The district court

sentenced him to fifty-one months’ imprisonment on the former count, and eighty-

four months’ imprisonment on the latter count. More than seven days later, the

district court sua sponte opted to resentence Defendant to forty-one months’

imprisonment on the former count, with all other terms of the new sentence

identical to those of the original. Defendant timely appealed, and defense counsel

filed an Anders brief and moved to withdraw as counsel. See Anders v.

California, 386 U.S. 738, 744 (1967).

We exercise jurisdiction over his appeal pursuant to 18 U.S.C. § 3742(a)

and 28 U.S.C. § 1291. Our Anders review of the proceedings reveals no error in

Defendant’s conviction, and we accordingly AFFIRM that conviction. However,

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because the district court lacked jurisdiction to resentence Defendant, and

Defendant’s waiver of his appellate rights encompassed all arguments against his

original sentence revealed by our Anders review, we REMAND with instructions

that the district court vacate Defendant’s later sentence and reinstate Defendant's

original sentence.

I. Background

Defendant’s plea agreement provided that “Defendant agrees to waive all

appellate rights except those relating to issues raised by the Defendant and denied

by the District Court regarding the application of the Sentencing Guidelines.”

Similarly, Defendant’s “Petition to Enter Pleas of Guilty” states, “I have agreed to

waive all rights to appeal . . . save and except those rights of appeal relating to

issues raised by me and denied by the Court regarding the application of the

Sentencing Guidelines.”

At Defendant’s guilty plea hearing, the prosecutor described the plea

agreement for the record, stating, “There is . . . [an] appellate’s [sic] right waiver,

a limited one, that essentially waives all appellate rights with the exception of

those issues regarding application to sentencing guidelines that are objected to

and overruled by the Court.” Later in the plea hearing, the district court asked

Defendant:

Do you understand that in your plea agreement there is a limited
waiver of appellate rights? . . . Do you understand that under that

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 waiver, you agree to waive all appellate rights except for issues
raised by you and denied by me regarding application of the
sentencing guidelines and also any claims . . . ?

Defendant stated that he understood both questions.

The district court orally sentenced Defendant on June 24, 2004. However,

the district court judge never signed a written version of the judgment, and

therefore the court never entered this judgment onto its docket.

The same day that the district court orally sentenced Defendant, the

Supreme Court issued its opinion in Blakely. On June 30, 2004, Defendant

submitted a Motion to Correct Sentence pursuant to Fed. R. Crim. P. 35(a), 1

alleging that the sentence “was the result of clear error” because

the sentencing court factually determined and applied a guideline
sentencing enhancement pursuant to USSG § 2B3.1(b)(2)(F), i.e. a
threat of death was made during the commission of the robbery,
which fact caused an increase in the defendant’s sentence but which
had not been alleged in the Indictment, proven beyond a reasonable
doubt, nor stipulated to by defendant in the Plea Agreement nor at
the time he entered his plea of guilty.

On July 6, 2004, the district court scheduled a hearing on Defendant’s Rule

35(a) motion for July 9. At that hearing, the court found that Defendant had

stipulated to the facts necessary for the threat of death adjustment. However,

after making this finding, the court opted to resentence Defendant without

1
Fed. R. Crim. P. 35(a) provides, “Within 7 days after sentencing, the court
may correct a sentence that resulted from arithmetical, technical, or other clear
error.”

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applying the adjustment. The court determined that because the threat of death

adjustment in U.S.S.G. § 2B3.1(b)(2) was part of a list of adjustments that

addressed possessing, brandishing, using, or discharging a firearm, the threat of

death adjustment was a weapons enhancement that should not be applied in

conjunction with a sentence under 18 U.S.C. § 924(c). See U.S.S.G. § 2K2.4,

comment. n.4.

Accordingly, the court found that it had made an error in including the

threat of death adjustment in Defendant’s June 24 sentence, and stated:

The Court denies the defendant’s motion to correct the sentence
under Blakely. The court, sua sponte, based upon its desire to
prevent a manifest injustice, hereby vacates its sentence pronounced
on June 24th, 2004, and we come now for resentencing . . . .

The court resentenced defendant to forty-one months’ imprisonment on the

robbery count and to the mandatory eighty-four months’ imprisonment on the

firearms count. Thus, Defendant’s July 9 sentence is ten months shorter than his

June 24 sentence. Following the July 9 sentencing, the judgment in this case was

entered on the district court’s docket on July 16, 2004.

II. Analysis

A. The District Court’s Jurisdiction to Resentence Defendant

“Federal courts are not courts of general jurisdiction; they have only the

power that is authorized by Article III of the Constitution and the statutes enacted

by Congress pursuant thereto.” Bender v. Williamsport Area Sch. Dist., 475 U.S.

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534, 541 (1986). “For that reason, every federal appellate court has a special

obligation to satisfy itself not only of its own jurisdiction, but also that of the

lower courts in a cause under review, even though the parties are prepared to

concede it.” Id. (quotations omitted). In general, we must address questions

pertaining to our or a lower court’s jurisdiction before proceeding to the merits.

See Tenet v. Doe, 125 S. Ct. 1230, 1235 n.4 (2005). 2 Accordingly, we begin by

analyzing the district court’s jurisdiction to resentence Defendant on July 9, 2004.

“A district court is authorized to modify a Defendant’s sentence only in

specified instances where Congress has expressly granted the court jurisdiction to

do so,” so “[a] district court does not have inherent power to resentence

defendants at any time.” United States v. Blackwell, 81 F.3d 945, 947, 949 (10th

Cir. 1996) (quotations omitted). Thus, in the case at bar the district court lacked

jurisdiction to resentence Defendant based upon its “desire to prevent a manifest

injustice.”

The district court also did not have jurisdiction to resentence Defendant

under any statutory provision. 18 U.S.C. § 3582(c) provides only three

2
Tenet describes certain threshold questions that may be resolved before
addressing jurisdiction. 125 S. Ct. at 1235 n.4. However, those threshold
questions are different from determining the enforceability of an appellate rights
waiver, as the resolution of those questions may result in the dismissal of a case
from a federal court altogether—not merely the dismissal of an appeal. Thus, we
must address the jurisdictional issue in this case before examining Defendant’s
waiver of his appellate rights.

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jurisdictional grants under which a court may “modify a term of imprisonment

once it has been imposed.” 3 A court may modify a sentence: (1) in certain

circumstances “upon motion of the Director of the Bureau of Prisons”; (2) “to the

extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules

of Criminal Procedure”; or (3) in cases where the applicable sentencing range

“has subsequently been lowered by the Sentencing Commission.” Id. at §

3582(c)(1)(A), (c)(1)(B), (c)(2). Avenues one and three are inapposite to the

resentencing that the district court performed in the instant case. Avenue two

offers Fed. R. Crim. P. 35 as the only potential source of authority to support the

district court’s modification of Defendant’s sentence.

Fed. R. Crim. P. 35 empowers a court to correct or reduce a Defendant's

sentence in two specified instances. Section (a) provides that “[w]ithin 7 days

after sentencing, the court may correct a sentence that resulted from arithmetical,

technical, or other clear error.” 4 Fed. R. Crim. P. 35(a) (emphasis added).

Section (b) grants a court authority to reduce a sentence to reflect a defendant’s

3
Of course, a district court may also modify a defendant’s sentence
following a remand from the Court of Appeals, see 18 U.S.C. § 3742(g), or to
correct clerical errors. See Fed. R. Crim. P. 36. Neither provision is at issue in
this case.
4
In 2002, amendments to Rule 35 moved the substantive provisions of what
had been Rule 35(c) to what is now Rule 35(a). Fed. R. Crim. P. 35, Advisory
Committee Notes on 2002 Amendment. Thus, our earlier decisions addressing the
former Rule 35(c) are applicable in construing the current Rule 35(a).

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post-sentencing substantial assistance. Fed. R. Crim. P. 35(b). Section (b) is

inapposite to the instant case. Thus, the dispositive question in determining

whether the district court had jurisdiction to resentence Defendant is whether Fed.

R. Crim. P. 35(a) divests a district court of jurisdiction to correct sentencing

errors more than seven days after sentencing. The history of the rule and case law

interpreting the provision make clear that Rule 35(a) provides a district court with

jurisdiction to correct sentencing errors for only seven days after the court first

orally sentenced a defendant.

Before the Sentencing Reform Act of 1984 became effective, Rule 35

allowed a district court to “correct an illegal sentence at any time” and to “correct

a sentence imposed in an illegal manner” within 120 days of certain triggers. See

Fed. R. Crim. P. 35, Rule Applicable to Offenses Committed Prior to Nov. 1,

1987. The Sentencing Reform Act deleted these provisions, however, such that

“the only circumstances in which a sentence could then be reduced were on

remand after appeal or upon motion of the government to recognize a defendant’s

cooperation.” Wright, King & Klein, Federal Practice and Procedure: Criminal 3d

§ 581; see United States v. Shank, 395 F.3d 466, 468 (4th Cir. 2005), petition for

cert. filed, (U.S. Apr. 25, 2005) (No. 04-1436).

In 1991, Rule 35 was amended to provide sentencing courts with a seven-

day period in which to correct arithmetical, technical, or other clear error. Fed.

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R. Crim. P. 35, Advisory Committee Notes on 1991 Amendments. “The authority

to correct a sentence under this subdivision [wa]s intended to be very narrow and

to extend only to those cases in which an obvious error or mistake ha[d] occurred

. . . .” Id. “The subdivision [wa]s not intended to afford the court the opportunity

to reconsider the application or interpretation of the sentencing guidelines or for

the court simply to change its mind about the appropriateness of the sentence.”

Id. “Nor should it be used to reopen issues previously resolved at the sentencing

hearing through the exercise of the court’s discretion with regard to the

application of the sentencing guidelines.” Id. 5

We have held that, for purposes of Rule 35, “sentence is imposed upon a

criminal defendant . . . when the [district] court orally pronounces sentence from

the bench.” 6 United States v. Townsend, 33 F.3d 1230, 1231 (10th Cir. 1994).

Thus, a court may act pursuant to Rule 35(a) to correct a sentence only within

seven days of orally pronouncing sentence. We have held that this seven-day time

limit is jurisdictional. See Blackwell, 81 F.3d at 948 & n.4; see also Townsend,

33 F.3d at 1231 (“[Defendant] was sentenced on August 13, 1993 . . . . Thus, the

5
While the wording of the current Rule 35(a) is slightly different from the
wording of the 1991 Rule 35(c), “[n]o change in practice [wa]s intended” by the
slight change in wording. Fed. R. Crim. P. 35, Advisory Committee Notes on
2002 Amendments.
6
An amendment to Rule 35 effective in December 2004 incorporates this
notion, though the amendment is not applicable to this case because the case
involves sentencing proceedings from mid-2004.

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district court had jurisdiction to correct [Defendant]’s sentence for clerical or

technical errors until August 20, 1993.”).

In this case, the district court orally pronounced Defendant’s original

sentence on June 24, 2004. Defendant filed his Rule 35(a) motion on June 30,

2004. On July 6, 2004, the district court scheduled a hearing on that motion. At

the hearing, which was held on July 9, 2004, the court denied Defendant’s

motion, but then sua sponte resentenced Defendant to the lower sentence.

Thus, in this case the district court scheduled a hearing on Defendant’s

motion to correct the original sentence within the seven-day period mandated by

Rule 35(a). Though twelve calendar days elapsed between the original sentencing

hearing and the district court’s scheduling of a hearing on Defendant’s motion,

only seven days passed during that time for purposes of Rule 35(a). This is

because Fed. R. Crim. P. 45 provides that if the period of time specified in a

Federal Rule of Criminal Procedure is less than eleven days, intermediate

Saturdays, Sundays, and legal holidays should be excluded. Fed. R. Crim. P.

45(a)(2). Therefore, for purposes of Rule 35(a) the seventh day after the district

court orally pronounced sentence was July 6—the day that the court scheduled a

hearing on Defendant’s motion to correct his sentence.

Similarly, for purposes of Rule 35(a) the district court resentenced

Defendant on the tenth day (the fifteenth calendar day) after the court orally

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sentenced Defendant. Because the July 9 resentencing was conducted more than

seven “Rule 35(a) days” following the June 24 sentencing, the district court

lacked jurisdiction under Rule 35(a) to resentence Defendant at that time.

The fact that Defendant made a motion for resentencing within the seven-

day period, and that the district court scheduled a hearing on that motion within

the seven-day period, did not extend the district court’s jurisdiction to dispose of

the motion beyond the seven-day period. Rule 35(a) makes no provision for the

extension of this period based on a timely motion by a party. The plain language

of the rule—which states that “[w]ithin 7 days after sentencing, the court may

correct a sentence,” Fed. R. Crim P. 35(a) (emphasis added)—makes clear that the

seven-day period limits the time in which a court may impose a corrected

sentence, not the time in which a party may make a motion for such a sentence.

That Rule 35(a) speaks in terms of actions by a court, and not a party, is telling:

The other portions of Rule 35 speak of actions by a party, so the omission of such

terms in Rule 35(a) appears intentional. See Fed. R. Crim. P. 35(b)(1) (“Upon the

government’s motion . . . .”); Fed. R. Crim. P. 35(b)(2) (same).

Many courts of appeals have rejected the argument that filing a motion to

correct a sentence or scheduling a hearing on such a motion within seven days of

the pronouncement of sentence can result in the extension of the period in which

a court may act pursuant to Rule 35(a). See, e.g., United States v. Wisch, 275

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F.3d 620, 626 (7th Cir. 2001) (“The time limit is jurisdictional, and, furthermore,

the motion must be ruled on by the district court within seven days, not simply

filed with the clerk of court during that time. . . . [A] court’s failure to rule is

functionally equivalent to an outright denial on the merits, thus making the

judgment final on the date the district judge’s power to alter the sentence

expired.”) (quotations and citation omitted); United States v. Morrison, 204 F.3d

1091, 1092, 1094 (11th Cir. 2000) (holding that a district court lacks jurisdiction

under Rule 35 “to correct a sentence if the court sets the sentence aside within

seven days of orally pronouncing it in open court but does not impose a new

sentence until more than seven days have passed,” and concluding that “[w]ithout

imposition of a new and corrected sentence before the seven days were up,” the

court’s order vacating the initial sentence “withered and is of no effect,” such that

the defendant was entitled to have his original sentence reimposed); United States

v. Morillo, 8 F.3d 864, 869 (1st Cir. 1993) (“[I]f a motion is timely made but is

not decided within the seven-day period, the judge’s power to act under the rule

subsides and the pending motion is deemed to be denied as of that date.”). 7

Some might argue that United States v. Austin, 217 F.3d 595 (8th Cir.
7

2000), supports a tolling of the Rule 35(a) period when a district court simply
schedules a hearing on a defendant’s motion for a corrected sentence within seven
days of imposing sentence. See id. at 598 (“Rule 35(c) . . . commands the court
to act within seven days . . . .”) (emphasis added). Tolling proponents might
argue that in this case, the district court acted within the seven-day period when it
(continued...)

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 Our holding in United States v. Corey, 999 F.2d 493, 496 (10th Cir. 1993)

(holding that filing a motion under the former Rule 35(c) delays the starting point

of the period for filing an appeal until the district court disposes of the motion),

appears at first glance to support the argument that filing a Rule 35(a) motion

extends the district court’s jurisdiction to rule on the motion beyond the seven-

day period. See also United States v. Smith, 929 F.2d 1453, 1457-58 (10th Cir.

1991) (allowing the district court to resentence a defendant at a time when the

defendant had not yet begun to serve his sentence and the government was

permitted to take an appeal); United States v. Carmouche, 138 F.3d 1014, 1016

7
(...continued)
scheduled a hearing, though it did not resentence Defendant until later.
However, Austin uses “act” as a synonym for “rule,” not to encompass non-
dispositive steps that a court may take, such as setting a hearing date. See id. at
597-98 (“[W]e . . . reject the view . . . that a timely Rule 35(c) motion creates a
new ten-day appeals period beginning whenever the court acts on the motion.”);
see also Blackwell, 81 F.3d at 948 n.4 (“[T]he government noted that the court
resentenced Defendant sixty-one days after the initial sentence date. By our math,
[the span was] seventy-two days. Regardless whether it was sixty-one or
seventy-two days, however . . . the court did not act within Rule 35(c)’s
seven-day period.”); United States v. Barragan-Mendoza, 174 F.3d 1024, 1030
(9th Cir. 1999) (adopting view that “a district court’s jurisdiction over a Rule
35(c) motion can last no longer than the seven days that the district court has to
act on the motion after the imposition of sentence,” thereby suggesting that
“acting” by simply scheduling a hearing does not satisfy Rule 35(c)) (emphasis
added). Moreover, if a court’s mere scheduling of a hearing were to toll the
running of the Rule 35(a) period, that tolling would extend the period and would
therefore violate Fed. R. Crim. P. 45. See Fed. R. Crim. P. 45(b)(2) (“The court
may not extend the time to take any action under Rule[] . . . 35, except as stated
in [that] rule[].”).

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(5th Cir. 1998) (holding that a timely rule 35(c) motion renders an otherwise final

order of a district court nonfinal until disposition of that motion). However, the

2002 amendments to Fed. R. App. P. 4(b) undermine this argument.

Fed. R. App. P. 4(b)(1) provides that “[i]n a criminal case, a defendant’s

notice of appeal must be filed” within ten days of “the entry of either the

judgment or the order being appealed.” 8 Fed. R. App. P. 4(b)(1). Rule 4(b)

specifically provides that if a defendant makes one of several timely motions, the

ten-day period will not begin to run until after the court decides that motion. Fed.

R. App. P. 4(b)(3).

A 2002 amendment to Rule 4(b) states, “The filing of a motion under

Federal Rule of Criminal Procedure 35(a) does not suspend the time for filing a

notice of appeal from a judgment of conviction.” Fed. R. App. P. 4(b)(5). The

2002 amendment to Fed. R. App. P. 4(b) bolsters our conclusion that Fed. R. App.

P. 35(a) provides only a seven-day period in which a court could correct a

sentence. See Fed. R. Crim. P. 35, Advisory Committee Notes for 1991

Amendments. 9 By providing that a motion to correct a sentence does not lengthen

8
Thus, while Rule 35’s seven-day time period for correcting a sentence
begins on the day the district court orally pronounces sentence, Rule 4(b)’s ten-
day time period for filing a notice of appeal begins on the day a judgment is
entered on the criminal docket. Fed. R. App. P. 4(b)(6).
9
Specifically, the Advisory Committee noted:

(continued...)

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the time for a defendant to appeal, Rule 4 ensures that a defendant will always

have time to file a notice of appeal after the seven days for correcting sentence

have elapsed but before the ten days for filing a notice of appeal have run.

For these reasons, we conclude that the district court did not have

jurisdiction to resentence Defendant on July 9. Ordinarily, in such a case, we

strike down the later sentence and remand the case with instructions to reinstate

the defendant’s original sentence. See Blackwell, 81 F.3d at 949; Townsend, 33

F.3d at 1231. 10 However, we may order the reinstatement of the original sentence

only if that sentence is permissible. Accordingly, we would next examine

9
(...continued)
At least two courts of appeals have held that the trial court has the
inherent authority . . . to correct a sentence within the time allowed
for sentence appeal by any party . . . . The amendment in effect
codifies the result in those two cases but provides a more stringent
time requirement. The Committee believed that the time for
correcting such errors should be narrowed within the time for
appealing the sentence to reduce the likelihood of jurisdictional
questions in the event of an appeal and to provide the parties with an
opportunity to address the court’s correction of the sentence . . . in
any appeal of the sentence. . . . The Committee contemplates that the
court would enter an order correcting the sentence and that such
order must be entered within the seven (7) day period so that the
appellate process (if a timely appeal is taken) may proceed without
delay and without jurisdictional confusion.

Fed. R. Crim. P. 35, Advisory Committee Notes for 1991 Amendments.
10
We affirm Defendant’s conviction but remand with instructions that the
district court vacate Defendant’s sentence and reinstate Defendant’s original
sentence. We do so to make clear that Defendant’s continued incarceration
pending the reinstatement of his original sentence is appropriate.

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whether the district court erred in imposing the June 24 sentence, unless

Defendant has waived his right to appeal from those errors. So, we next turn our

attention to Defendant’s waiver of his appellate rights.

B. The Original Sentence and Defendant’s Appellate Rights Waiver

We have fully examined the proceedings, as required by Anders, to

determine whether there are any legal points arguable on their merits as to the

propriety of the June 24 sentence. See 386 U.S. at 744. Our Anders review of the

record in this case indicates that Defendant has three potentially meritorious

issues for appeal based on the June 24 sentence: (1) whether a threat of death for

purposes of the adjustment in U.S.S.G. § 2B3.1(b)(2)(F) may be made by pointing

a firearm; (2) whether the threat of death adjustment may be applied in connection

with the imposition of a sentence under § 924(c); and (3) whether Defendant’s

sentence violated Booker. However, because Defendant waived “all appellate

rights except those relating to issues raised by the Defendant and denied by the

District Court regarding the application of the Sentencing Guidelines,” none of

the potential issues for appeal can provide a basis to challenge the June 24

sentence if Defendant’s waiver of his appellate rights is enforceable. We

conclude that the waiver is enforceable, and therefore remand the case to the

district court with instructions to reinstate the original sentence.

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 “[W]e generally enforce plea agreements and their concomitant waivers of

appellate rights.” United States v. Hahn, 359 F.3d 1315, 1318 (10th Cir. 2004)

(en banc). In considering how to resolve appeals brought by defendants who have

waived their appellate rights in a plea agreement, we first determine if an appeal

falls within the scope of the appellate waiver. Id. at 1325. Second, we ascertain

whether the defendant’s waiver of his or her appellate rights was knowing and

voluntary. Id. Finally, we evaluate whether enforcement of the appellate waiver

would result in a miscarriage of justice because the district court relied on an

impermissible factor, ineffective assistance of counsel in negotiating the waiver

renders the waiver invalid, the sentence exceeds the statutory maximum, or the

waiver is otherwise unlawful. Id. at 1327.

1. Scope of the Appellate Waiver

All of Defendant’s potentially meritorious arguments challenging his June

24 sentence fall within the scope of his waiver of appellate rights. Whether a

threat of death for purposes of the U.S.S.G. § 2B3.1(b)(2)(F) adjustment may be

made merely by pointing a firearm, and whether the threat of death adjustment

may be applied in connection with the imposition of a sentence under § 924(c),

are issues relating to the application of the Sentencing Guidelines. However,

Defendant did not raise these issues during the June 24 sentencing hearing.

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Therefore, the issues are within the scope of Defendant’s appellate rights

waiver. 11

Whether Defendant’s sentence violated Booker does not relate to “issues

regarding the application of the Sentencing Guidelines” within the meaning of

Defendant’s appellate rights waiver. The phrase “the application of the

Sentencing Guidelines” in the plea agreement, does not refer to the arguments that

(1) it was constitutionally impermissible for the district court to engage in

factfinding by a preponderance of the evidence to enhance Defendant’s sentence

beyond the Guidelines range that would otherwise apply based on the facts that

Defendant admitted during the plea hearing; or (2) the district court’s application

of the Sentencing Guidelines in a mandatory fashion was error. After all,

Defendant agreed that the court was “required to consider the applicable

sentencing guidelines” and could “depart from those guidelines under some

circumstances.” In so agreeing, Defendant indicated an acceptance of the

mandatory Guidelines regime that existed before Booker, rather than a regime in

which the Guidelines are advisory and variances from the Guidelines may be

Although the district court sua sponte raised these issues on July 9, the
11

court had no jurisdiction to reconsider Defendant’s sentence at that time.
Therefore, our focus must remain on the events that occurred on or before June
24. During that time, neither issue was raised or ruled upon.

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justified based on statutory considerations, not just the Guidelines’ departure

provisions.

Our conclusion is buttressed by another court of appeals’ observation that

Booker arguments may fall within the scope of a defendant’s waiver of his or her

appellate rights. See United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th

Cir. 2005) (“‘[T]he right to appeal a sentence based on Apprendi/Booker grounds

can be waived in a plea agreement. Broad waiver language covers those grounds

of appeal.’”) (quoting United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir.

2005)), petition for cert. filed, (Apr 05, 2005) (No. 04-9566). Therefore, we hold

that all of Defendant’s potential arguments on appeal fall within the scope of his

appellate rights waiver.

2. Knowledge and Voluntariness

Defendant’s waiver of his appellate rights was knowing and voluntary.

“When determining whether a waiver of appellate rights is knowing and

voluntary, we especially look to . . . . whether the language of the plea agreement

states that the defendant entered the agreement knowingly and voluntarily. . . .

[and] for an adequate [Rule] 11 colloquy.” Hahn, 359 F.3d at 1325 (citation

omitted).

In this case, both conditions are met. Defendant signed, dated, and initialed

the appellate rights waiver in his plea agreement. Defendant signed a similar

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waiver in his “Petition to Enter Pleas of Guilty” in open court in the presence of

his attorney. In that petition, Defendant stated that he offered his pleas freely and

voluntarily, with “full understanding of all the matters set forth . . . in th[e]

petition.” Finally, the terms of the plea agreement were reiterated during

Defendant’s plea hearing. At that hearing, the district court specifically asked

Defendant whether he understood the appellate rights waiver, and Defendant

stated that he did.

To the extent that Defendant might argue that the Supreme Court’s

decisions in Blakely and Booker, both of which were issued subsequent to his

original sentencing, somehow changed the way that courts conduct and review

sentencings to such an extent that Defendant’s waiver of his appellate rights was

not knowing and voluntary, that argument is without merit. 12 The Supreme Court

has made it clear that a defendant’s decision to give up some of his rights in

connection with making a plea—including the right to appeal from the judgment

entered following that plea—remains voluntary and intelligent or knowing despite

subsequent developments in the law. After all, “absent misrepresentation or other

impermissible conduct by state agents, . . . a voluntary plea of guilty intelligently

made in the light of the then applicable law does not become vulnerable because

12
Similarly without merit, for the same reasons, would be any argument that
the subsequent case authority of Blakely and Booker rendered Defendant’s guilty
plea involuntary or unintelligent.

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later judicial decisions indicate that the plea rested on a faulty premise.” Brady v.

United States, 397 U.S. 742, 757 (1970). “A defendant is not entitled to withdraw

his plea merely because he discovers long after the plea has been accepted that his

calculus misapprehended . . . the likely penalties attached to alternative courses of

action.” Id.; see also United States v. Ruiz, 536 U.S. 622, 630 (2002) (“[T]his

Court has found that the Constitution, in respect to a defendant’s awareness of

relevant circumstances, does not require complete knowledge of the relevant

circumstances, but permits a court to accept a guilty plea, with its accompanying

waiver of various constitutional rights, despite various forms of misapprehension

under which a defendant might labor.”) (footnote omitted); id. (citing as one

possible misapprehension that “defendant failed to anticipate a change in the law

regarding relevant punishments”) (quotations omitted); Bousley v. United States,

523 U.S. 614, 619 (1998) (“We further held [in Brady] that [the defendant’s] plea

was intelligent because, although later judicial decisions indicated that at the time

of his plea he did not correctly assess every relevant factor entering into his

decision, he was advised by competent counsel, was in control of his mental

faculties, and was made aware of the nature of the charge against him.”) (citations

and quotations omitted).

In accordance with these principles, the Eleventh and Sixth Circuits have

determined that a defendant’s pre-Booker waiver of the right to appeal was

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knowing and voluntary. See Grinard-Henry, 399 F.3d at 1297 (“[Defendant]

knowingly and voluntarily waived his right to appeal his sentence on the grounds

he asserts on appeal . . . .”); United States v. McGilvery, 403 F.3d 361, 362-63

(6th Cir. 2005).

Similarly, other courts of appeals have concluded that defendants’ pre-

Booker guilty pleas were voluntary and intelligent. See United States v. Bradley,

400 F.3d 459, 463 (6th Cir. 2005) (“Plea agreements . . . may waive constitutional

or statutory rights then in existence as well as those that courts may recognize in

the future. . . . [W]here developments in the law later expand a right that a

defendant has waived in a plea agreement, the change in law does not suddenly

make the plea involuntary or unknowing or otherwise undo its binding nature. A

valid plea agreement, after all, requires knowledge of existing rights, not

clairvoyance.”); United States v. Sahlin, 399 F.3d 27, 30 (1st Cir. 2005) (“We

reject [the defendant]’s claim that he should be permitted to withdraw his guilty

plea because it was not voluntary, being based on an understanding of a

sentencing scheme rendered erroneous by Booker. In ordinary circumstances

Booker provides no basis to vacate the entry of a pre-Booker guilty plea on

grounds of lack of voluntariness.”) (footnote omitted).

Finally, we have noted that a defendant’s waiver of his appellate rights is

not otherwise unlawful based on the subsequent issuance of Booker. See United

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States v. Porter, No. 04-4009, 2005 WL 1023395, at *7-*8 (10th Cir. May 3,

2005) (“[W]e find the change Booker rendered in the sentencing landscape does

not compel us to hold [the defendant]’s plea agreement unlawful. . . . To allow

defendants or the government to routinely invalidate plea agreements based on

subsequent changes in the law would decrease the prospects of reaching an

agreement in the first place, an undesirable outcome given the importance of plea

bargaining to the criminal justice system.”). Therefore, it seems clear that in this

case, Defendant’s waiver of his appellate rights was knowing and voluntary.

3. Miscarriage of Justice

Enforcing Defendant’s waiver of his appellate rights will not result in a

miscarriage of justice. Hahn details the only four situations in which enforcement

of an appellate waiver may result in a miscarriage of justice. 359 F.3d at 1327.

Two are clearly not at issue in this appeal: The district court did not rely on an

impermissible factor, cf. id., and we cannot evaluate in this direct appeal whether

ineffective assistance of counsel in negotiating the waiver renders the waiver

invalid. Cf. id.; see United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.

1995) (en banc). Only the other two situations detailed in Hahn, which arise

when the sentence exceeds the statutory maximum or the waiver of appellate

rights is otherwise unlawful, see 359 F.3d at 1327, are even arguably relevant.

a. Sentence in Excess of the Statutory Maximum

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 To determine whether a sentence “exceeds the statutory maximum” within

the meaning of Hahn, we first must determine the “statutory maximum” to which

Hahn refers. We look first to the plain meaning of the phrase “statutory

maximum.” Ordinarily and naturally, the phrase “statutory maximum” refers to

the longest sentence that the statute punishing a crime permits a court to impose.

Thus, it seems likely that meaning is intended in Hahn.

This conclusion is buttressed by the interpretation of “statutory maximum”

in case law contemporaneous with Hahn. Four years prior to our decision in

Hahn, the Supreme Court held in Apprendi v. New Jersey, 530 U.S. 466 (2000),

that “[o]ther than the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” Id. at 490. After Apprendi and before

Blakely, we “applied Apprendi only where a sentencing court had imposed a

sentence above the statutory maximum permitted by the statute of conviction,

regardless of what fact finding the court, rather than the jury, conducted [under

the Guidelines] to impose a sentence within that statutory maximum.” United

States v. Price, 400 F.3d 844, 847 (10th Cir. 2005) (collecting cases). Thus, in

the time between Apprendi and Hahn, which was decided a few months before

Blakely, courts nearly unanimously interpreted the phrase “statutory maximum”

according to its plain meaning.

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 That Blakely and Booker take a different approach in defining “statutory

maximum” does not undercut the conclusion that the plain meaning of the phrase

was intended in Hahn. In Blakely, the Court gave a new term of art meaning to

the phrase “statutory maximum” when it stated that “the statutory maximum for

Apprendi purposes is the maximum sentence a judge may impose solely on the

basis of the facts reflected by the jury verdict or admitted by the defendant.”

Blakely, 124 S. Ct. at 2537 (quotation and emphasis omitted); see Price, 400 F.3d

at 847. In Booker, the Court reiterated Blakely’s clarification in applying

Blakely to the federal sentencing guidelines. See 125 S. Ct. at 749.

However, the Blakely/Booker definition of “statutory maximum” has

always been qualified with the phrase “for Apprendi purposes,” and has only been

applied in sentencing guidelines cases. In holding that the term of art meaning

for “statutory maximum” applies in sentencing guidelines cases, the Supreme

Court has not mandated that every time the phrase “statutory maximum” is

invoked, the Blakely/Booker definition should apply. Indeed, the use of

“statutory maximum” in Blakely and Booker is distinguishable from the phrase’s

use in Hahn—a case with no connection to the sentencing guidelines concerns

that motivated Blakely and Booker.

Hahn instead addressed the enforceability of appellate rights waivers. We

have never based the validity of an appellate rights waiver on the application of

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sentencing guidelines. Rather, we have long considered a waiver’s enforceability

in light of whether the sentence the district court imposed was within the statutory

maximum provided for the offense of conviction. The cases cited by Hahn for the

prospect that appellate rights waivers are subject to exception for sentences that

exceed the statutory maximum make this clear, in that they are themselves based

on holdings that clearly embrace the plain meaning of “statutory maximum.” 13

The conclusion that the plain meaning of “statutory maximum” should

control in interpreting Hahn is bolstered by the Eleventh Circuit’s decision in an

analogous situation. See Rubbo, 396 F.3d at 1330. In Rubbo, the defendant,

prior to Blakely and Booker, entered into a plea agreement in which she waived

her rights to appeal her sentence unless “the sentence exceeds the maximum

permitted by statute.” 396 F.3d at 1333 (quotation omitted). The defendant

argued that her appeal waiver did not preclude her from challenging the

constitutionality of her sentence under Booker, because her sentence was in

excess of the statutory maximum as Blakely and Booker apply that term. See

Rubbo, 396 F.3d at 1331-32.

13
Hahn took the phrase “exceeds the statutory maximum” from United
States v. Elliott, 264 F.3d 1171, 1173 (10th Cir. 2001), and United States v.
Cockerham, 237 F.3d 1179, 1182 (10th Cir. 2001). Both Elliott and Cockerham
cite to United States v. Black, 201 F.3d 1296, 1301 (10th Cir. 2000). Black cites
to United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992), which states, “a
defendant could not be said to have waived his right to appellate review of a
sentence imposed in excess of the maximum penalty provided by statute.”

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 The Eleventh Circuit rejected the defendant’s premise “that [the] ‘statutory

maximum’ for Booker purposes is the same thing as ‘the maximum permitted by

statute’ for purposes of [the defendant]’s appeal waiver,” noting:

The two are not the same. The context in which the terms are used
and the meaning they convey are different. . . .

In the Apprendi/Booker line of decisions, the Supreme Court
used the term “statutory maximum” to describe the parameters of the
rule announced in those decisions, a rule that had nothing to do with
the scope of appeal waivers. The term was defined in a specialized,
which is to say a non-natural, sense. It was defined that way not only
for semantic convenience but also in order to justify and explain the
holdings the Court entered in those decisions. Everyone knows that a
judge must not impose a sentence in excess of the maximum that is
statutorily specified for the crime. By labeling a sentence that the
judge may not impose under the Apprendi/Booker doctrine as one in
excess of the “statutory maximum,” the Court may have sought to
call into play that well-known principle of law.

Whether it did, however, is not the point for present purposes.
The point here is that the definition of “statutory maximum” the
Supreme Court used to describe and explain its holdings in those
cases says nothing about what [the defendant] and the government
meant when they used the term “the maximum permitted by statute”
in the appeal waiver.

Rubbo, 396 F.3d at 1334 (citations, footnote omitted). Looking to the parties’

intent, the Eleventh Circuit held that the parties instead meant the “usual and

ordinary meaning” of the phrase “exceeds the maximum permitted by statute” –

the “upper limit of punishment that Congress has legislatively specified for the

violation of a statute.” Id. at 1334-35 (quotations omitted).

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 The Eleventh Circuit is not the only court of appeals to interpret the phrase

“statutory maximum” in this way. See United States v. West, 392 F.3d 450, 460

(D.C. Cir. 2004) (stating that the “most reasonable inference” is that the phrase

“statutory maximum” in the exception to a defendant’s appellate rights waiver

refers to “the maximum fines and periods of imprisonment for violations” of the

statutes of conviction). Relatedly, we have held that an exception to a

defendant’s waiver of his appellate rights for a sentence “‘above the maximum

statutory penalty provided in the statute of conviction’” does not refer to the

maximum penalty that the court could have imposed under the Guidelines based

on the facts that the defendant admitted, but rather to the maximum provided in

the statute of conviction. Porter, 2005 WL 1023395, at *5.

Moreover, using the Blakely/Booker definition of “statutory maximum” in

interpreting Hahn would be improper because doing so would render it virtually

impossible for a defendant to waive his or her Sixth Amendment Booker rights.

After all, if we were to use the Blakely/Booker definition of “statutory maximum”

in interpreting Hahn, a defendant could appeal his or her sentence, alleging a

constitutional Booker error (or Blakely challenge), and raise that issue regardless

of a general waiver of appellate rights in the plea agreement. Yet that result

would stand in tension with established Sixth Amendment case law. The Sixth

Amendment is the basis for the Blakely/Booker line of authority. See Blakely,

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124 S. Ct. at 2534; Booker, 125 S. Ct. at 746; see also Apprendi, 530 U.S. at 476,

488 (applying Fifth and Sixth Amendments to a state through the Fourteenth

Amendment). And “it is axiomatic that a defendant may waive his Sixth

Amendment right to trial by jury.” Booker, 125 S. Ct. at 774 (Stevens, J.,

dissenting) (citing Patton v. United States, 281 U.S. 276, 312-13 (1930),

abrogated on other grounds by Williams v. Florida, 399 U.S. 78 (1970)); see also

Blakely, 124 S. Ct. at 2541 (noting that “nothing prevents a defendant from

waiving his Apprendi rights”).

Accordingly, we hold that “statutory maximum” in Hahn refers to the upper

limit of punishment that Congress has legislatively specified for the violation of a

given statute. In this case, Defendant’s sentence did not fall beyond that limit,

and Defendant’s waiver of his appellate rights is not unenforceable based on the

length of Defendant’s sentence relative to that statutory maximum.

b. Otherwise Unlawful Waiver

For a waiver to be otherwise unlawful, “the error must seriously affect the

fairness, integrity or public reputation of judicial proceedings,” as that test was

employed in United States v. Olano, 507 U.S. 725, 732 (1993). Hahn, 359 F.3d at

1327 (quotations and alteration omitted). It may be argued that enforcing

Defendant’s waiver of his appellate rights will cause a miscarriage of justice

because enforcing that waiver will result in Defendant’s being imprisoned for an

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additional ten months as a result of bringing this appeal. According to this

argument, by reversing the July 9 sentence, considering Defendant’s potential

arguments to the original sentence waived, and ordering the district court to

reimpose the original sentence, we are discouraging defendants from exercising

their appellate rights.

This argument misses the mark. It is not the enforcement of Defendant’s

appellate rights waiver that results in our invalidation of his July 9 sentence.

Rather, it is the fact that the district court lacked jurisdiction to impose that

sentence. Even if we were to consider the merits of Defendant’s potential

arguments addressing the June 24 sentence, we might still conclude that the

district court did not err in imposing that sentence. 14 Therefore, the enforcement

of Defendant’s waiver of his appellate rights is not determinative of Defendant’s

receiving a higher sentence, and does not therefore result in a miscarriage of

justice.

Moreover, we note that our decision to enforce Defendant’s waiver of his

appellate rights leaves Defendant in the same position in which he would have

Because we resolve this case on the grounds that Defendant waived his
14

appellate rights, we take no position on whether a threat of death for purposes of
the adjustment in U.S.S.G. § 2B3.1(b)(2)(F) may be made merely by pointing a
firearm, whether the threat of death adjustment may be applied in connection with
the imposition of a sentence under § 924(c), or whether Defendant’ sentence
violates Booker.

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been if the district court had not improperly resentenced him. Had the district

court not improperly resentenced Defendant, Defendant would have been facing a

135-month sentence and would have been able to appeal only issues “raised by the

Defendant and denied by the District Court regarding the application of the

Sentencing Guidelines.” Based on our decision, Defendant will face the same

135-month sentence and will be unable to obtain relief for issues included within

his appellate rights waiver. Since our decision merely restores the status quo

prior to the district court’s improper action, our decision to enforce the appellate

rights waiver does not result in a miscarriage of justice. Indeed, not enforcing the

appellate rights waiver, merely because doing so would result in Defendant

receiving a higher sentence than he received as a result of the district court’s

decision to resentence him on July 9, would be a real miscarriage of justice.

After all, that would mean that this Defendant, out of all the defendants who

knowingly and voluntarily waived their appellate rights, would obtain relief from

that waiver—and this only because of the district court’s improper decision to

resentence Defendant. Therefore, we hold that enforcing Defendant’s waiver of

his appellate rights will not result in a miscarriage of justice.

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III. Conclusion

For the foregoing reasons, we AFFIRM Defendant’s conviction and

REMAND for the district court to vacate Defendant’s later sentence and reinstate

Defendant’s original sentence.

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