UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ UNITED STATES OF AMERICA, Plaintiff

- Appellee,

v. ERIC MAURICE HARPER, Defendant

- Appellant. No. 20

- 6170 (D.C. No. 5:19

- CR

- 00082

- SLP

- 1) (W.D. Okla.)

_________________________________ ORDER AND JUDGMENT *

___________________ ______________ Before TYMKOVICH , Chief Judge , HOLMES and MORITZ , Circuit Judges.

_________________________________ Eric Harper pleaded guilty to distributing methamphetamine. In determining the advisory sentencing

- guidelines range, t he district court c lassified Mr. Harper as a career offender

. Mr. Harper disputes his career

- offender classification and seeks to appeal

. But his plea agreement included a broad waiver of his appellate rights, and
t he government moves to enforce the waiv er. We grant the motion. We will enforce an appe llate waiver if (1) “the disputed appeal falls within ” the waiver’s scope; (2) “the defendant knowingly and voluntarily waived his appellate rights”; and (3) enforcing the waiver would not “result in a mis carriage of

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### February 22, 2021 Christopher M. Wolpert Clerk of Court2 justice.” United States v. Hahn , 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). Mr. Harper does not dispute that his appeal fits within the scope of his waiver or that his waiver was knowing and voluntary. He contends only that enforcing his waiver would result in a miscarriage of justice. Enforcing an appeal waiver causes a miscarriage of justice if (1) “ the district court relied on an impermissible factor such as race ” ; (2) ineffective assistance of counsel in negotiating th e waiver renders it invalid; (3) “ the sentence exceeds the statutory maximum ” ; or (4) “ the waiver is otherwise unlawful, ” seriously affecting the fairness, integrity, or public reputation of judicial proceedings. Id. at 1327 (internal quotation marks omit ted)

. Mr. Harper contends that the district court’s alleged error in classifying him as a career offender renders his waiver unlawful. O ur precedent requires us to reject this argument . At bottom, Mr. Harper alleges that the district court committed a legal error when it calculated his sentencing

- guidelines range

. And o ur cases make clear that the exception Mr. Harper invokes “looks to whether the waiver itself is unlawful , not to whe ther another aspect of the proceeding may have involved legal error. ” United States v. Smith , 500 F.3d 1206, 1213 (10th Cir. 2007) ( citation and internal quotation marks omitted) ; see also United States v. Sandoval , 477 F.3d 1204, 1208 (10th Cir. 2007) (“ Our inquiry is not whether the sentence is unlawful, but whether the waiver itself is unlawful because of some procedural error or because no waiver is possible. ”)

.3 Mr. Harper ’s reading of Hahn does not persuade us otherwise. Mr. Harper argues that Hahn looked “to the error alleged when analyzing the otherwise unlawful factor.” Resp. at 6. But this argument relies on P art III.C of Hahn ’s per curiam opinion, “ a n opinion concurring in the result” that did not receive a majority of the
court’s votes. Hahn , 359 F.3d at 1318

. Our precedent is clear : “To allow alleged errors in computing a defendant’s sentence to render a waiver unlawful would nullify the waiver based on the very sort of claim it was intended to waive.” Smith , 500 F.3d at 121 3

. Enforcing Mr. Harper’s appellate waiver will not result in a miscarriage of justice. We grant the government’s motion to enforce the appellate waiver and dismiss this appeal.

Entered for the Court Per Curiam