UNITED STATES CO URT 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 th e offense in the amount of $398,315.12. Ms. Henson’s plea agreement al so contained a waiver of her right to appeal from her sentence and a ny matter in connection with the forfeiture of assets. In spite of these waiv ers, Ms. Henson seeks to challenge the district court’s decision

* This panel has determined that oral ar gument 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It ma y 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- 2 - to amend the forfeiture order to include substitute property. The government has moved to enforce the app eal 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 appella te 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 sh ould 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. Hens on “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 im posed . . . .”); United States v. Wittig, 575 F.3d 1085, 1096 (10th Ci r. 2009) (“[F]orfeiture is a component of a sentence . . . .”). Ms. Hens on’s plea agreement also contai ns a separate section that specifically addresses the forfeiture of asse ts. In that secti on, she knowingly and voluntarily waived her right to: a jury trial on the forfeitu re of assets, “all constitutional, legal, and equ itable defenses to the forfeit ure of these assets in any- 3 - 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 a ppeal 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 . . . sha ll not be deemed an altera tion 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 de termination would not be considered an alteration of her sentence. A ccordingly, we conclude that Ms. Henson’s appeal of the district court’s amended forfe iture 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 dism iss this appeal.

Entered for the Court Per Curiam