UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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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.)

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ORDER AND JUDGMENT*

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

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Eric Harper pleaded guilty to distributing methamphetamine. In determining 

the advisory sentencing-guidelines range, the district court classified 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 

the government moves to enforce the waiver. We grant the motion. 

We will enforce an appellate 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 miscarriage 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*This order and judgment is not binding precedent, except under the doctrines 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 Court
2

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 the 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 omitted).

Mr. Harper contends that the district court’s alleged error in classifying him as 

a career offender renders his waiver unlawful. Our 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 our cases make clear 

that the exception Mr. Harper invokes “looks to whether the waiver itself is unlawful, 

not to whether 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.”).
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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 Part III.C of Hahn’s per curiam 

opinion, “an 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 1213. 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