UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

BRANDI J. HENSON, 

 Defendant-Appellant. 

No. 13-6137 

(D.C. No. 5:12-CR-00170-R-1) 

(W.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges. 

 

 Brandi J. Henson pled guilty to one count of wire fraud. As part of the plea 

agreement, Ms. Henson agreed to forfeit the proceeds of the offense in the amount of 

$398,315.12. Ms. Henson’s plea agreement also contained a waiver of her right to 

appeal from her sentence and any matter in connection with the forfeiture of assets. 

In spite of these waivers, Ms. Henson seeks to challenge the district court’s decision 

 

* This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata, 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 

United States Court of Appeals 

Tenth Circuit 

August 1, 2013

Elisabeth A. Shumaker 

Clerk of Court
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to amend the forfeiture order to include substitute property. The government has 

moved to enforce the appeal waiver pursuant to United States v. Hahn, 359 F.3d 1315 

(10th Cir. 2004) (per curiam). 

 When reviewing a motion to enforce, 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. 

Ms. Henson asserts that the appeal waiver should not be enforced because her appeal 

is outside the scope of the waiver. We disagree. 

 The plea agreement in this case contains two appeal waivers. One is a broad 

waiver in which Ms. Henson “knowingly and voluntarily waive[d]” her right to 

appeal or collaterally challenge her sentence and the manner in which it was 

determined. Mot. to Enforce, Att. 1 (Plea Agreement) at 9. It is well-established that 

forfeiture is part of the sentence. See Libretti v. United States, 516 U.S. 29, 38-39 

(1995) (“Forfeiture is an element of the sentence imposed . . . .”); United States v. 

Wittig, 575 F.3d 1085, 1096 (10th Cir. 2009) (“[F]orfeiture is a component of a 

sentence . . . .”). Ms. Henson’s plea agreement also contains a separate section that 

specifically addresses the forfeiture of assets. In that section, she knowingly and 

voluntarily waived her right to: a jury trial on the forfeiture of assets, “all 

constitutional, legal, and equitable defenses to the forfeiture of these assets in any 
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proceeding,” and “appeal or collaterally attack any matter in connection with the 

forfeiture provided herein.” Mot. to Enforce, Att. 1 at 7-8. 

 Ms. Henson contends, however, that her appeal is not within the scope of the 

appeal waivers in her plea agreement because she did not agree to the forfeiture of 

substitute property. But in her plea agreement, she did “agree[] that forfeiture of 

substitute assets . . . shall not be deemed an alteration of [her] sentence.” Id. at 8. 

Ms. Henson was therefore on notice that the district court could order the forfeiture 

of substitute assets and that such a determination would not be considered an 

alteration of her sentence. Accordingly, we conclude that Ms. Henson’s appeal of the 

district court’s amended forfeiture order falls within the scope of her agreement to 

waive any challenge to her sentence and any matter in connection with the forfeiture 

of assets. 

 We grant the government’s motion to enforce and dismiss this appeal. 

 Entered for the Court 

 Per Curiam