UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DAKOTA COOK, Defendant - Appellant. No. 20-2037 (D.C. No. 1:17-CR-01721-JCH-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , McHUGH , and EID , Circuit Judges.

________________ _________________
Defendant Dakota Cook was indicted for two counts of possession of a firearm by a felon (in violation of 18 U.S.C. § 922(g)(1)) and one count of possession of an unregistered firearm (in violati on of 26 U.S.C. §§ 5861(d), 5841, and 5871). He pleaded guilty to the first count of the indictment in exchange for the dismissal of the other two. Cook’s plea agreement included th e following appellate waiver: 21. The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C. § 3742 afford a defe ndant the right to appeal a conviction and the sentence im posed. Acknowledging that, the Defendant knowingly waives the right to appeal the Defendant’s conviction(s) and any sentence, including any

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 21, 2020 Christopher M. Wolpert Clerk of Court2 fine, at or under the maximum statutory penalty authorized by law. R., Vol. 1, at 31. At the time of his se ntencing, Cook was serving a 15-year state sentence in New Mexico for second-degree murde r. The presentence report computed Cook’s offense level at 35 and criminal hi story VI, resulting in a guideline imprisonment range of 292–365 months. Th e district court sentenced C ook to the maximum statutory penalty for being a felon in possession of a firearm: 120 months’ imprisonment. 18 U.S.C. § 924(g). Applying USSG § 5G1.3(d), the court furt her ordered that five years of the sentence would be served concurrently with Cook’s state se ntence and five years would be served consecutively. The court de nied Cook’s request to reduce the sentence to account for his pre- sentence confinement. Cook filed a notice of app eal, contending the district court should have run the entire federal sentence concu rrently with his state senten ce and challenging the denial of his request for presente nce confinement credit. Th e government now moves to enforce the waiver in Cook ’s plea agreement. Exerci sing jurisdiction pursuant to 28 U.S.C. § 1291, we grant the motion and dismiss the appeal. DISCUSSION In deciding whether to enforce an appella te waiver, we consider: “(1) whether the disputed appeal falls within the scope of the wa iver of appellate rights; (2) whether the defendant knowingly and vol untarily waived his appellate rights; and (3) whether enforcing the waiver would resu lt in a miscarriage of justice . . . .” United States v. Hahn , 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam).3 Cook argues that each of these considerations demonstr ates that the waiver should not be enforced.
A. Scope of the Waiver The instant appeal falls w ithin the terms of the waiver. Cook was sentenced “at or under the maximum statutory penalty authorized by law” and now appeals that sentence. Cook contends his appeal was not w ithin the scope of the waiver on two bases. First, he argues that the plea agreement did not discuss the interaction between his state and federal sentences and that he had an im plicit right to rely on the district court applying the “correct” guidelines . Second, he argues that he was—in effect—sentenced to more than ten years’ imprisonment becaus e the district court did not grant his request for pre-sentence confinement credit against his federal sentence. We disagree. As to the first argument, regardless of why Cook seeks to appeal (in this case, the issue of whether his federa l sentence should have been run entirely concurrent with his state sentence), what he seeks to appeal is a sentence of ten years’ imprisonment. In his plea agreement, he wa ived that right. As to the second, Cook’s sentence was 120 months’ imprisonment, R., Vol. 1, at 61, and the district court lacks authority to grant credit for presenten ce confinement against federal sentences, United States v. Wilson , 503 U.S. 329, 334 (1992). Cook asserts that, because of this lack of authority, the court should have adjusted his sentence, citing United States v. Dorsey , 166 F.3d 558, 561 (3d Cir. 1999). Even if the court had the discretion to impose a sentence of less than 120 months to account for time spent in federal presentence confinement, however, whether or not it did so does not change the4 maximum statutory penalty al lowed by law. Because his sentence did not exceed the statutory maximum, he waived his right to appeal it.
B. Knowing and Voluntary Waiver “When determining whether a waiver of appellate rights is knowing and voluntary, we especially look to two factors. First, we examine whether the language of the plea agreement states that the defendant entere d the agreement knowingly and voluntarily. Second, we look for an adequa te Federal Rule of Criminal Procedure 11 colloquy.” Hahn , 359 F.3d at 1325 (citation omitted) . The language of Cook’s plea agreement states he “knowingly waives” his appellate rights. R., Vol. 1, at 31. It further specifies the plea “is fr eely and voluntarily made and is not the result of force, threats, or promises (other than the promises set fort h in this agreement and any addenda).” Id. at 32. In his Rule 11 coll oquy, Cook acknowledged that he understood the rights he was giving up with the appellate waiver, that he was aware this court would enforce th e waiver, and that he had discussed the rights he was giving up with his attorney. Both the terms of the writte n waiver and the plea colloquy therefore indicate it was made knowingly and voluntarily. Cook does not ch allenge the voluntariness of his appellate waiver but argues that it wa s not made knowingly because the issue of whether the federal sentence would be impo sed consecutively or concurrently with his state sentence was not discussed. Howe ver, “the consecutive nature of a sentence is not a direct consequence a bout which the defendant must be advised” for a plea to be knowing. United States v. Hurlich , 293 F.3d 1223, 1231 (10t h Cir. 2002). Cook5 was advised that he faced a sentence of up to ten years, and he was sentenced to ten years. He therefore knowingly waived his appellate rights.
C. Miscarriage of Justice Enforcing an appellate waiv er does not result in a mi scarriage of justice unless it results in a situation “[1] where the district court relied on an impermissible factor such as race, [2] where in effective assistance of couns el in connection with the negotiation of the waiver renders the waiv er invalid, [3] where the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise unlawful.” Hahn , 359 F.3d at 1327 (alterations in original) (internal quotati on omitted). To satisfy the fourth factor, the waiver must “seriously affect the fairness, integrity or public reputation of judicial pro ceedings” as set forth in United States v. Olano , 507 U.S. 725, 732 (1993). Hahn , 359 F.3d at 1327 (alteration omitted) (internal quotation marks omitted). Cook does not address the fi rst three factors. He instead argues the waiver is otherwise unlawful because the court applied the wrong sentencing guideline when it opted to run part of his federal sentence consecutively to his state sentence, resulting in an alle gedly illegal sentence. This argument is unavailing. Cook was sentenced to ten years’ impr isonment—the maximum statutory penalty authorized by law. Cook’s arguments that his resulting sentence is unlawful do not speak to whether his appellate waiver was unlawful; he does not show that enforcing the waiver would seriously affect the integrity, fairne ss, or public reputation of judicial proceedings. See Hahn , 359 F.3d at 1329 (“Subjecti ng [the defendant] to a6 sentence sanctioned by Congress does not cons titute an error seri ously affecting the fairness, integrity, or public reputa tion of judicial proceedings.”). We therefore enforce Cook ’s appeal waiver found in his plea agreement and dismiss this appeal.

Entered for the Court Per Curiam