F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 30, 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,
v. No. 07-6066
(D.C. No. 03-CR-242-T)
OLIVER KEITH BROWN ER, (W .D. Okla.)
also known as Big Papa,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, M U RPH Y, and M cCO NNELL, Circuit Judges.
Defendant Oliver Keith Browner pleaded guilty in M arch 2004, to one
count of conspiracy to possess with intent to distribute 50 grams or more of a
substance containing a detectable amount of cocaine base (crack), and 500 grams
or more of a substance containing a detectable amount of cocaine. Brow ner’s
plea agreement included an appeal waiver, with certain exceptions. Browner has
*
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 This order and judgment is not binding precedent, except under the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.
filed a notice of appeal challenging the sentence he received on remand from a
prior appeal, and the government has moved to enforce Browner’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.
Browner agreed to waive his right to appeal his guilty plea and any other
aspect of his conviction, or to appeal “his sentence as imposed by the Court and
the manner in which the sentence is determined, provided the sentence is w ithin
or below the applicable guideline range determined by the Court to apply to this
case,” except the appeal waiver does “not apply to appeals or challenges based on
changes in the law reflected in Tenth Circuit or Supreme Court cases decided
after the date of this agreement that are held by the Tenth Circuit or Supreme
Court to have retroactive effect.” M otion to Enforce, Ex. 2 (Plea Agreement) at
7. The district court initially imposed a life sentence, rejecting Brow ner’s
argument that the mandatory application of the Sentencing Guidelines to impose
that sentence was potentially inconsistent with Blakely v. Washington, 542 U.S.
296 (2004).
Browner appealed, claiming ineffective assistance of counsel and
sentencing error under United States v. Booker, 543 U.S. 220 (2005), decided
after the date of Browner’s guilty plea and sentencing. Booker held that the
mandatory Sentencing Guidelines were unconstitutional, and rendered the
Guidelines advisory. Id. at 245-46. The government filed a motion to enforce the
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appeal waiver, but later withdrew its motion to enforce the appeal waiver with
respect to the Booker error. See United States v. Taylor, 413 F.3d 1146, 1151-53
(10th Cir. 2005) (holding that a Booker claim does fall within a “change in law ”
exception to an appeal waiver). On appeal, this court dismissed Brow ner’s
ineffective assistance of counsel claim (because such a claim can only be raised in
a collateral proceeding under 28 U.S.C. § 2255), and remanded the case to the
district court for resentencing because its mandatory application of the Guidelines
to impose a life sentence constituted non-constitutional Booker error. United
States v. Browner, 211 F. App’x 781, 784-85 (10th Cir. 2007).
On remand, the district court sentenced Browner to thirty-five years’
imprisonment, which is below the statutory maximum and the advisory
Sentencing Guideline range of life imprisonment. Browner has now filed a notice
of appeal from that sentence, stating in his docketing statement that he was
“denied his rights under the Sixth Amendment at his resentencing.” Docketing
Statement at 4. As noted, the government has filed a motion to enforce the appeal
waiver. Under Hahn, we will enforce an appeal waiver if (1) “the disputed appeal
falls within the scope of the waiver of appellate rights”; (2) “the defendant
knowingly and voluntarily waived his appellate rights”; and (3) “enforcing the
waiver would [not] result in a miscarriage of justice.” Id. at 1325.
Browner contends his appeal is not within the scope of the appeal waiver
because he was resentenced based on a change in Tenth Circuit and Supreme
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Court law, namely Booker. He argues that because he did not waive his right to
appeal challenges based on changes in Tenth Circuit or Supreme Court law, and
because his resentence resulted from a successful challenge based on a
change-in-law Booker claim, it follow s that his appeal from that resentence must
fall w ithin the change-in-the-law exception to his appeal waiver. W e disagree.
The exception to Browner’s appeal waiver applies only to “appeals or challenges
based on changes in the law reflected in Tenth Circuit or Supreme Court cases
decided after the date of this agreement.” Plea Agreement at 7. The claims that
Browner seeks to raise on appeal are that there was a sentencing disparity error
and that his Sixth A mendment rights were violated at his resentencing. These
claims do not, on their face, fall within this exception because neither are based
on any post-plea change in the law . In response to the government’s motion to
enforce the appeal waiver, Browner has not articulated any more specific
appellate challenge that comes within the change-in-the-law exception. Thus, w e
conclude that Browner’s proposed appeal falls within the scope of the appeal
waiver, not its exceptions.
Browner also contends that enforcing the appeal waiver would be a
miscarriage of justice, claiming that there is a sentencing error that seriously
affects the fairness, integrity or public reputation of judicial proceedings.
Browner does not allege that the waiver itself is unlawful, but questions an
alleged sentencing disparity between a similarly situated codefendant. This is
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precisely the type of attack we sought to foreclose in Hahn and, therefore, we find
no miscarriage of justice. United States v. Sandoval, 477 F.3d 1204, 1208
(10th Cir. 2007) (reiterating prior holdings that sentencing objections do not
establish that enforcement of the appeal waiver would be unlawful, which is the
focus of the miscarriage-of-justice inquiry).
The government’s motion is GRANTED and the appeal is dismissed. The
mandate shall issue forthwith.
ENTERED FOR THE COURT
PER CURIAM
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