## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 4 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. MARCUS G. HAHN,

Defendant - Appellant.

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, Amicus-Curiae. No. 01-2301

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.Ct. No. CR 00-1344 JP)

David N. Williams, Assistant United States Attorney(David C. Iglesias, United States Attorney, with him on the briefs), Office of the United States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee. Kari Converse (Marc H. Robert, with her on the brie fs), Albuquerque, New Mexico, for Defendant-Appellant. Norman R. Mueller, Rachel A. Bellis, Haddon, Morgan , Mueller, Jordan, Mackey and Foreman, P.C., Denver, Colorado; Daniel P. Blan k, Assistant Federal Public Defender, San Francisco, California, filed an amicu s curiae brief for the National Association of Criminal Defense Lawyers.-2-

Before TACHA , Chief Circuit Judge, SEYMOUR , EBEL , KELLY , HENRY , BRISCOE , LUCERO , MURPHY , HARTZ , O’BRIEN , McCONNELL , and TYMKOVICH , Circuit Judges.

PER CURIAM

Defendant-Appellant Marcus G. Hahn was convicted of marijuana and firearms violations and sentenced to forty years’ i mprisonment. In a second prosecution for sexual-exploitation offenses, Mr. H ahn entered into a plea agreement in which he waived the right to appeal hi s sentence. The district court, finding that it lacked discretion to issue the sexu al-exploitation sentence concurrently with the marijuana-and-firearms senten ce, sentenced Mr. Hahn to twenty-four years to be served consecutively with the marijuana-and-firearms sentence. Mr. Hahn filed this appeal, arguing thatthe district court had discretion to sentence him to concurrent sentences. We hold t hat we have subject matter jurisdiction to hear this appeal; and, because the plea agreement constitutes an enforceable waiver of appellate rights, we DISMISS. The Per Curiam opinion delivers the opinion of this Court with respect to Parts I, II, III.A, and III.B. A majority of this Court concurs in dismissing Mr. Hahn’s appeal. Part III.C of the Per Curiam opinio n is an opinion concurring in the result.-3- I. BACKGROUND We set this case for initial en banc review sua spo nte to resolve an intraCircuit split of authority concerning a matter of g reat public importance. See 28 U.S.C. § 46(c). The vast majority of federal crimi nal cases are resolved by plea agreements in which the defendant pleads guilty to some counts in exchange for concessions by the government. This system is an i mportant tool in controlling the flood of criminal cases now inundating the fede ral courts. Many such plea agreements contain a waiver of the defendant’s righ t to appeal the district court’s sentence and the underlying conviction. Given the importance of plea bargaining to the crim inal justice system, we generally enforce plea agreements and their concomi tant waivers of appellate rights. See, e.g. , United States v. Hernandez , 134 F.3d 1435, 1437 (10th Cir. 1998) (“A defendant’s knowing and voluntary waiver of the statutory right to appeal his sentence is generally enforceable.”). W e do so, in large part, because public policy strongly supports such waivers as the y benefit defendants, the government, and society at large. See United States v. Elliott , 264 F.3d 1171, 1174 (10th Cir. 2001). Nevertheless, we consistent ly hold that “a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court.” Id. at 1173 (quotation omitted). These two competing goals—the need to enforce plea agreements and the1 We define the narrow parameters of miscarriages of justice below. -4- need to subject sentencing decisions to review for miscarriages of justice 1 —arguably have led us to inconsistent conclusions. Cognizant of the need to enforce plea agreements, we have, on occasion, s tated that we lack jurisdiction to hear appeals when a defendant has entered into avalid plea agreement containing a waiver of appellate rights. See, e.g., United States v. Rubio , 231 F.3d 709, 711 & n.1 (10th Cir. 2000) (stating that this court “would certainly overreach [its] jurisdiction to entertain [an] appe al when the plea agreement deprived [the defendant] of the right to appeal”). In other instances, instead of conducting a jurisdictional analysis, we have enfor ced waivers of appellate rights pursuant to principles of contract law tempered by public policy concerns. See, e.g., United States v. Black, 201 F.3d 1296, 1301 (10th Cir. 2000) (“[A]greements waiving the right to appeal, like other contracts, are [evaluated] subject to certain public policy constraints.”). With these overarchi ng tensions in mind, we turn to the issues in this case.
II. FACTS On December 31, 1999, law enforcement officers exec uted a search warrant at Mr. Hahn’s home and found a sophisticated mariju ana-growing operation and twenty-two loaded firearms. The officers also seized videotapes depicting Mr. Hahn sexually abusing young boys who appeared to be sedated, as well as a-5-

prescription for a “date rape” drug. Based on this evidence, the government charged Mr. Hahn in two separate federal cases, one involving the marijuana operation and related firearms possession and the o ther involving the sexualexploitation offenses. In the former prosecution, a jury found Mr. Hahn gu ilty of manufacturing marijuana in violation of 21 U.S.C. § 841, maintain ing a place for the manufacture of marijuana in violation of 21 U.S.C. § 856, and two counts of possessing a firearm in furtherance of a drug-traff icking crime in violation of 18 U.S.C. § 924(c). United States v. Hahn , 38 Fed. Appx. 553, 554 (10th Cir. 2002). Mr. Hahn received concurrent sentences totaling fiv e years for the two substantive marijuana offenses, a ten-year sentence for the first firearm conviction, and a twenty-five-year sentence for the second firearm conviction. The district court imposed the two firearms-relatedsentences consecutively to each other and to the five-year total sentence for the substantive marijuana convictions. Thus, in the marijuana-and-firearms c ase, Mr. Hahn received a total of forty years’ imprisonment, or 480 months, a sent ence that this court affirmed on appeal. Id. In the sexual-exploitation case, a grand jury indic ted Mr. Hahn on seventeen counts relating to sexual exploitation an d child pornography. He pleaded guilty to four counts of sexual exploitatio n of a minor in violation of 182 The appeal waiver in the plea agreement executed by Mr. Hahn provides as

follows: 12. The defendant is aware that Title 18, United States Code, Section 3742 affords a defendant the right to appeal the sentence imposed.

a. Acknowledging that, the defendant knowingly waives the right to appeal any sentence within the maximum provided in the statutes of conviction or the manne r in which that sentence was determined on the grounds set forth inTitle 18, United States Code, Section 3742 or on any ground whatever , in exchange for the concessions made by the United States in th is plea agreement.

b. Acknowledging that, the defendant knowingly waives the right to appeal any sentence within the guideline range applicable to the statutes of conviction as determi ned by the Court after resolution of any objections by either party to the presentence report to be prepared in this case, and the defenda nt specifically agrees not to appeal the determination of the Courtin resolving any contested sentencing factor. In other words, the d efendant waives the right to appeal the sentence imposed in this ca se except to the extent, if any, that the Court may depart upwards f rom the applicable

(continued...) -6- U.S.C. § 2251 and two counts of distributing a controlled substance to an individual with intent to commit a crime of violenc e in violation of 21 U.S.C. §§ 841(a)(1) and (b)(7). He also pleaded no contes t to another count of distributing a controlled substance to an individua l with intent to a commit a crime of violence. As part of the plea agreement, the government agreed to dismiss the remaining counts in exchange for Mr. Hahn’s waiver of his right to appeal the sentence imposed, “except to the extent . . . that the Court may depart upwards from the applicable sentencing guideline range as determined by the
Court.” 2 The district court imposed concurrent sentences o f 240 months for each2 (...continued)

sentencing guideline range as determined by the Cou rt. -7- of the counts to which Mr. Hahn pleaded guilty. On the count to which Mr. Hahn pleaded no contest, the court imposed a fifty-two-m onth sentence to run consecutively to the other terms. Thus, Mr. Hahn r eceived a total sentence of 292 months’ incarceration in the sexual-exploitation ca se. Moreover, the district court ordered that Mr. Hahn serve the 292-month sentence consecutivelyto the 480-month sentence previously imposed in th e marijuana-and-firearms case, resulting in a total p rison sentence of over sixty-four
years. Over Mr. Hahn’s objections, the district court conc luded that, under 18 U.S.C. § 924(c), it had “no alternative but to” imp ose the sentence consecutively. On appeal, Mr. Hahn argues that the district court wrongly concluded that it lacked discretion to impose a concurrent, rather th an a consecutive, sentence. He maintains that, had the district court correctly un derstood its authority to impose a concurrent sentence, it would have exercised that d iscretion to impose a sentence twenty-four years shorter than he received.
III. DISCUSSION We face three issues on appeal. First, assuming th at Mr. Hahn validly waived his right to appeal, do we have subject matt er jurisdiction to hear this appeal? Second, if we have subject matter jurisdic tion, what appellate waiver-8-

enforcement analysis should we undertake? Third, w ith the appropriate analysis at hand, how do we resolve this appeal? We address these issues in turn. A. Subject Matter Jurisdiction The parties agree, and we concur, that if Mr. Hahn’ s appellate waiver is unenforceable, we would have subject matter jurisdi ction. The parties, however, disagree about the effect an enforceable appellate waiver has on our subject matter jurisdiction. The government asserts that avalid waiver of appellate rights deprives this Court of both statutory and constitut ional subject matter jurisdiction. See Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 89 (1998) (describing subject matter jurisdiction as “the courts’ statuto ry or constitutional powerto adjudicate the case”). Assuming for purposes of th is jurisdictional discussion that the appellate waiver is enforceable, we disagree wi th the government and hold that we have subject matter jurisdiction to hear th is appeal.

1. Statutory Subject Matter Jurisdiction We read Mr. Hahn’s briefs to argue that the distric t court’s failure to consider a concurrent sentence constitutes a senten ce imposed in violation of law. The government, therefore, contends that we lack st atutory subject matter jurisdiction over this appeal because it could onlyarise under 18 U.S.C. § 3742(a)(1), which in the government’s view does n ot apply in this case because the sentence was not imposed in violation of law. See 18 U.S.C. § 3742(a)(1) (“A3 See, e.g., United States v. Hurlich , 348 F.3d 1219, 1220 (10th Cir. 2003)

(exercising jurisdiction under both § 1291 and § 37 42(a) when the defendant challenged only his sentence); United States v. Castro-Rocha , 323 F.3d 846, 847 (10th Cir. 2003) (same); United States v. Vasquez-Flores , 265 F.3d 1122, 1123 (10th Cir. 2001) (same).

4 See, e.g ., United States v. Vasquez , 352 F.3d 1067, 1070 (6th Cir. 2003) (continued...) -9- defendant may file a notice of appeal . . . if the sentence . . . was imposed in violation of law”). We disagree. The government’s argument ignores the fact that the district court’s entry of a sentence constitutes a final order, thereby es tablishing subject matter jurisdiction under 28 U.S.C. § 1291. See 28 U.S.C. § 1291 (providing that courts of appeals have subject matter jurisdiction over fi nal orders of district courts). It is beyond dispute that a conviction and imposition of a sentence constitute a final judgment for § 1291 purposes. Corey v. United States , 375 U.S. 169, 174 (1963) (“Final judgment in a criminal case . . . means sen tence. The sentence is the judgment.”) (internal quotations omitted); United States v. Moskow , 588 F.2d 882, 889 (3d Cir. 1978) (“A judgment of sentence is a fi nal order whether the sentence is imposed after a jury verdict or after the entry of a guilty plea.”). We regularly take subject matter jurisdiction pursu ant to both § 3742(a) and § 1291 over cases in which a defendant, after enter ing into a plea agreement, seeks to challenge only the sentence imposed by the district court. 3 This practice is not unique to our Court. 4 We also note that “[p]rior to the passage of the4 (...continued)

(“This court has jurisdiction over the appeal under28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2) because Vasquez is appealing th e district court’s final sentence on the ground that it was imposed through an incorrect application of the guidelines.”); see also United States v. Warren , 338 F.3d 258, 262 (3d Cir. 2003) (same); United States v. Rhodes , 330 F.3d 949, 952 (7th Cir. 2003) (same); United States v. Berberich , 254 F.3d 721, 722 (8th Cir. 2001) (same); United States v. Hernandez-Valdovinos , 352 F.3d 1243, 1245 (9th Cir. 2003) (same). The Eleventh Circuit exercises jurisdiction over su ch cases solely under § 1291 because it does not read § 3742 to regulate subject matter jurisdiction. United States v. Fossett , 881 F.2d 976, 978-80 (11th Cir. 1989); see also Arizona v. Manypenny , 451 U.S. 232, 244-49 (1981) (distinguishing betwe en an appellate court’s subject matter jurisdiction and a party’s r ight to file an appeal). This is a minority position, however. See United States v. Graham , 72 F.3d 352, 361 n.1 (3d Cir. 1995) (Nygaard, J., concurring) (listing c ases). The Supreme Court has yet to rule on whether § 3742 is jurisdictional, but recent dicta indicates that it may be. See United States v. Ruiz , 536 U.S. 622, 628 (2002).

5 See, e.g., Dorszynski v. United States , 418 U.S. 424, 431 (1974) ("[O]nce it is determined that a sentence is within the limi tations set forth in the statute under which it is imposed, appellate review is at a n end.”); see also Koon v. United States , 518 U.S. 81, 96-100 (1996) (stating that prior to the Sentencing Reform Act of 1984, courts of appeals reviewed sent encing for abuse of discretion); Ian Weinstein, The Discontinuous Tradition of Sentencing Discretio n: Koon ’s Failure to Recognize the Reshaping of Judicial D iscretion Under the Guidelines , 79 B.U. L. Rev. 493, 499 (1999) (“In Koon , the Supreme Court followed longstanding practice in using ‘discretion ’ to describe . . . the unreviewable, and essentially standardless, pre-[Se ntencing Reform Act] exercise (continued...) -10- Sentencing Reform Act of 1984 . . . criminal appeal s were taken pursuant to 28 U.S.C. § 1291[,]” United States v. Ready , 82 F.3d 551, 555 (2d Cir. 1996) (internal citations and quotations omitted), and th at the scope of § 1291 jurisdiction included an abuse of discretion reviewover sentencing errors. 55 (...continued)

of sentencing power[.]”).

6 We note initially that § 3742(a) does not explici tly limit § 1291. Although § 3742(a)(1) manifests the congressional i ntent to codify pre-1984 jurisdiction over sentencing appeals—see United States v. Colon , 884 F.2d 1550, 1553 (2d Cir. 1989); S. Rep. No. 98-225 at 149-55 ( 1983), reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3332—there is simplynothing in the text of § 3742 clearly expressing a congressional intent to limit the courts of appeals’ § 1291 subject matter jurisdiction over sentencing appeals. Moreover, we are further persuaded by the fact that Congress has notemployed in § 3472(a) the blunt language it has used elsewhere to limit juris diction. See, e.g. , 26 U.S.C. § 7429(f) (“Any determination made by a court underthis section shall be final (continued...) -11- Although taking subject matter jurisdiction under b oth § 3742(a) and § 1291 appears to be accepted practice, we note that it could appear to transgress the canon of statutory construction that instructs “where a specific provision conflicts with a general one, the specific governs. ” Edmond v. United States , 520 U.S. 651, 657 (1997). Strictly adhering to this ca non would require courts to accept sentencing appeals exclusively under § 3742( a) because it is the more specific jurisdictional statute. For the reasons d iscussed below, we find another canon of statutory construction more applicable to this case. The Supreme Court has repeatedly stated . . . that absent a clearly expre ssed congressional intention, repeals by implication are not favored. An implied repeal will only be found where provisions in two statutes are in irreconcilable conflict, or where the latter act co vers the whole subject of the earlier one and is clearly intended as a substitute. Branch v. Smith , 538 U.S. 254, 273 (2003) (citations and quotation s omitted). 66 (...continued)

and conclusive and shall not be reviewed by any oth er court.”); 42 U.S.C. § 405(h) (“The findings and decision of the Commiss ioner of Social Security after a hearing shall be binding . . . . No action agains t the United States [or other specified persons] . . . shall be brought under sec tion 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter. ”).

7Congress created intermediate courts of appeals in1891. See Judiciary Act of 1891, 26 Stat. 826. The very act that creat ed the courts of appeals conferred on them the power to review final judgments in almost all civil and criminal cases. 26 Stat. 828, § 6. Recodified and technically amended, § 6 of the 1891 Act exists essentially unchanged today as 28 U .S.C. § 1291. See Midland Asphalt Corp. v. United States , 489 U.S. 794, 798 (1989) (tracing the lineage of § 1291 as it relates to Supreme Court jurisdiction to the Judiciary Act of 1789, 1 Stat. 73). -12- To satisfy either of these tests for implicit repea l, “the intention of the legislature to repeal must be clear and manifest[.] ” Radzanower v. Touche Ross
& Co. , 426 U.S. 148, 154 (1976) (internal quotations omi tted). Moreover, silence in the legislative history is insufficient to suppo rt repeal by implication. Lynch v. Household Fin. Corp. , 405 U.S. 538, 547-49 (1972) (holding that predece ssor act to 28 U.S.C. § 1331 did not repeal the predecessor of 28 U.S.C. § 1343(3) by implication). This rule against implied repeal is particularly persuasive when repeal would affect a bedrock jurisdictional statut e such as § 1291. 7 We find that no grounds exist to hold that § 3742 i mplicitly repealed the pre-1984 scope of § 1291. Here, the fact that § 37 42 is limited to criminal law makes it obvious that it does not cover the whole s ubject of § 1291, which applies to both civil and criminal appeals. Further, legis lative history does not support a-13-

conclusion that § 1291 and § 3742 are irreconcilabl y conflicted. See Radzanower , 426 U.S. at 154. The legislative history of § 3742 does not discuss its impact on §1291. See S. Rep. No. 98-225 at 149-55 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3332. Indeed, although silent on repeal, the legislative history does manifest Congress’s intent to expand appellate revi ew over sentencing. Id . at 150-53; see also Lynch , 405 U.S. at 547-49 (stating that legislative hist ory supporting congressional intent to expand federal j urisdiction weighs against implied repeal of a previously enacted jurisdiction al statute). Therefore, far from supporting implied repeal, the legislative history shows that Congress intended the opposite result. As such, we hold that the leg islative history of § 3742 does not support the conclusion that § 3742 and § 1291 are irreconcilably conflicted. Therefore, even assuming that the government’s § 37 42(a)(1) analysis is correct, we find that we have statutory subject matter jurisdiction under § 1291 over sentencing appeals even when the defendant has waived his right to appeal in an enforceable plea agreement.

2. Article III Subject Matter Jurisdiction In the alternative, the government argues that the entry of an enforceable appellate waiver renders this case moot, thus leavi ng us without the requisite case or controversy necessary for subject matter jurisdi ction under Article III of the Federal Constitution. See U.S. Const. art. III, § 2, cl. 1; Whitmore v. Arkansas ,-14-

495 U.S. 149, 154-55 (1990) (“Article III, of cours e, gives the federal courts [subject matter] jurisdiction over only ‘cases and controversies’”); Iron Arrow Honor Soc’y v. Heckler , 464 U.S. 67, 70 (1983) (“Federal courts lack juri sdiction to decide moot cases because their constitutional a uthority extends only to actual cases or controversies.”). The government argues that the entry of a valid plea agreement, like civil settlements, moots a criminal appeal. See Tosco Corp. v. Hodel , 804 F.2d 590, 592 (10th Cir. 1986) (per curiam) ( “With limited exceptions, a settlement [in a civil case] involvin g all parties and all claims moots an action.”). We disagree. We have offered several different locutions for de termining when a case is

moot. See, e.g., Hain v. Mullin , 327 F.3d 1177, 1180 (10th Cir. 2003) (“A case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”) (quotation om itted); Smith v. Plati , 258 F.3d 1167, 1179 (10th Cir. 2001) (“An issue becomes mootwhen it becomes impossible for the court to grant ‘any effectual re lief whatsoever’ on that issue to a prevailing party.”) (citations omitted). Further , the Supreme Court has held that “even the availability of a partial remedy is suffi cient to prevent a case from being moot.” Calderon v. Moore , 518 U.S. 149, 150 (1996) (internal quotations omitted). Indeed, in Sibron v. New York, 392 U.S. 40 (1968), the Supreme Court permitted defendants, who conditionally pleaded gui lty, to challenge their8 To be clear, in the context of subject matter juris diction, our ability to

grant relief speaks to our powerto grant relief, not whether we should exercise that power. See Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 89 (1998) (describing subject matter jurisdiction as “the cou rts’ statutory or constitutional powerto adjudicate the case”); 13 Charles Alan Wright e t al., Federal Practice and Procedure § 3522, at 78-79 (2d ed. 1984) (“The jurisdiction of the federal courts is dependent on the subject matter of the ac tion or the status of the parties to it; it is not dependent on the merits of the cas e. Thus a court may have subject matter jurisdiction over a case even though the act ion is one to which there is no merit.”). -15- convictions even after the completion of their sent ences, because “the obvious fact of life [is] that most criminal convictions do in fact entail adverse collateral legal consequences. The mere possibility that this will be the case is enough to preserve a criminal case from ending ignominiously in the limbo of mootness.” Id. at 55 (quotations omitted). Regardless of the phr ase employed, this case is not moot because we have the power to grant a legally c ognizable remedy requested by a party—namely, voiding the plea agreement. 8
Our Tosco decision does not suggest a different result. In Tosco , the named parties to the case settled after filing their appe al. Tosco , 804 F.2d at 591. Despite this settlement, potential intervenors soug ht to file motions with this
Court. Id . We held that the settlement between the parties mooted the case, depriving us of subject matter jurisdiction to “ent ertain the motions of the potential intervenors.” Id . In that case, neither named party challenged the validity of the settlement agreement; thus we could not have granted “any-16-

effectual relief whatsoever” to the parties withoutvoiding the settlement itself, which neither party sought. In other words, the ca se was moot because neither party continued to seek a legally cognizable remedy that we had the power to grant. See Hain , 327 F.3d at 1180; Smith , 258 F.3d at 1179. We do not face an analogous situation in this case. Instead of a third party seeking to prolong the life of a settled dispute, o ne of the parties is seeking to void the plea agreement—a legally cognizable remedy that we have the power to grant. Given this vital distinction, we find Bhattacharya v. Copple , 898 F.2d 766 (10th Cir. 1990) (per curiam), persuasive.
In Bhattacharya , the parties entered into a settlement agreement t hat expressly permitted the district court to award att orneys fees up to $450,000. Id. at 767. After the district court awarded fees of approximately $180,000, plaintiffs appealed, arguing that the award was less than the $450,000 contemplated in the agreement. Id. at 768. On appeal, the defendants argued that, gi ven the settlement, the Court lacked subject matter jurisdi ction to hear the appeal because the amount of the award did not “create a controver sy between the parties.” Id. We disagreed with the defendant’s argument, held th at we had subject matter jurisdiction, and affirmed the award. We reached t hese conclusions in light of the applicable state statute that permitted the court i n its discretion to approve or disapprove of attorneys’ fees. Id. at 768-69. Thus, we found that the allegations9 We do not hold that erroneous application of federa l statutes or the

Sentencing Guidelines provide grounds for finding awaiver agreement unenforceable, only that we have jurisdiction to en tertain such cases. -17- of abuse of discretion survived the settlement agre ement. Id. at 769. We face a similar situation here. Mr. Hahn and the government entered into a plea agreement that required the district ju dge, pursuant to federal statute and the U.S. Sentencing Guidelines Manual, to deter mine the length of Mr. Hahn’s sentence. Compare id. at 767 (parties entered into settlement whereby th e district court, pursuant to Kansas statute, would d etermine the amount of attorneys’ fees). Here, the district court determi ned the length of Mr. Hahn’s sentence; and Mr. Hahn believes that this determination was made contrary to an implicit term of the plea agreement. Compare id. at 768 (plaintiff believed the award of attorneys’ fees to be contrary to the term s of the settlement agreement). As in Bhattacharya , the district court’s application of federal statu tes and the Guidelines in sentencing survive the plea agreementitself for purposes of the mootness analysis. 9 See id. at 769. We hold, then, that an appeal challenging the enforceability of an appellate waiver is not moot b ecause we have the power to afford the legally cognizable relief—voiding the pl ea—requested by a party. See
Hain , 327 F.3d at 1180; Smith , 258 F.3d at 1179. Therefore, we hold that this Court has both statuto ry and constitutional subject matter jurisdiction over appeals when a cri minal defendant has waived his10 See generally United States v. Teeter , 257 F.3d 14, 21-27 (1st Cir. 2001);

United States v. Hernandez , 242 F.3d 110, 113-14 (2d Cir. 2001); United States v. Khattak, 273 F.3d 557, 559-63 (3d Cir. 2001); United States v. Brown , 232 F.3d 399, 402-06 (4th Cir. 2000); United States v. Melancon , 972 F.2d 566, 567 (5th Cir. 1992); United States v. Fleming , 239 F.3d 761, 764 (6th Cir. 2001); United States v. Jemison , 237 F.3d 911, 916-18 (7th Cir. 2001); United States v. Andis , 333 F.3d 886, 889 (8th Cir. 2003) (en banc); United States v. Nguyen , 235 F.3d 1179, 1182-84 (9th Cir. 2000); United States v. Howle , 166 F.3d 1166, 1168-69 (11th Cir. 1999). -18- appellate rights in an enforceable plea agreement. To the extent that United States v. Rubio , 231 F.3d 709, 711 & n.1 (10th Cir. 2000), is inco nsistent with this holding, we overrule it. B. Appellate Waiver Enforcement Analysis Finding that we have subject matter jurisdiction to entertain this appeal, we next consider how we should resolve appeals broughtby defendants who have waived their appellate rights in a plea agreement. In fashioning our analysis, we are guided by four principles. First, every circui t that has considered enforcement of appellate waivers enforces at least some forms o f appellate waivers. 10 Second, contract principles govern plea agreements. See, e.g., United States v. Rockwell Int’l Corp. , 124 F.3d 1194, 1199 (10th Cir. 1997). Third, “a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court.” Elliott , 264 F.3d at 1173 (quotations omitted). Fourth, appellate waivers benefit the government bysaving the costs of prosecuting appeals; and “[o]nly through the [effic ient] dismissal of [an] appeal-19-

will the government receive the benefit of its barg ain.” Id. at 1174 (quotations omitted). With these principles at hand, we adopt the following analysis and a new intra-Court procedure.

1. Contract Analysis Tempered by Public Policy We find persuasive the Eighth Circuit’s treatment o f these principles and adopt, with slight variation, the three-prong analy sis announced in United States v. Andis , 333 F.3d 886, 890-92 (8th Cir. 2003) (en banc). This analysis calls for the court of appeals, in reviewing appeals brought after a defendant has entered into an appeal waiver, to determine: (1) whether th e disputed appeal falls within the scope of the waiver of appellate rights; (2) wh ether the defendant knowingly and voluntarily waived his appellate rights; and (3 ) whether enforcing the waiver would result in a miscarriage of justice as we defi ne herein. See id. a. Scope The first prong of the analysis requires the court to determine if the disputed appeal falls within the scope of the appel late waiver. Id . at 890; see also United States v. Chavez-Salais , 337 F.3d 1170, 1173 (10th Cir. 2003) (holding that a court will not enforce waivers of appellate rights beyond the scope of the plea agreement); United States v. Atterberry , 144 F.3d 1299, 1300 (10th Cir. 1998) (“This court will hold a defendant to the ter ms of a lawful plea agreement.”). In determining a waiver’s scope, we will “strictly construe[]-20-

[appeal waivers] and any ambiguities in these agree ments will be read against the Government and in favor of a defendant’s appellate rights.” Andis , 333 F.3d at 890; see also Chavez-Salais , 337 F.3d at 1173 (“Like most waivers, a defendant ’s waiver of his right to appeal . . . is to be constr ued narrowly.”). b. Knowing and voluntary The second prong of the analysis requires the courtto ascertain whether the defendant knowingly and voluntarily waived his appe llate rights. Andis , 333 F.3d at 890-91; see also Elliott , 264 F.3d at 1173. When determining whether a wai ver of appellate rights is knowing and voluntary, we es pecially look to two factors. First, we examine whether the language of the plea agreement states that the defendant entered the agreement knowingly and voluntarily. Elliott , 264 F.3d at 1174 n.1 (“Indeed, the plea agreement, which he sig ned, stated that [the defendant] ‘knowingly and expressly waive[d] the ri ght’ to appeal”). Second, we look for an adequate Federal Rule of Criminal Proce dure 11 colloquy. Andis , 333 F.3d at 891; Chavez-Salais , 337 F.3d at 1173 (“The second way in which the content of a defendant’s waiver of appeal rights ca n be made known to him is through the colloquy with the court required by Fed eral Rule of Criminal Procedure 11.”). Mr. Hahn and amicus curiae , the National Association of Criminal Defense Lawyers (“NACDL”), urge that, as a matter o f law, a waiver of appellate11 In his panel reply brief, Mr. Hahn specifically in dicated that he was not

attempting to invalidate the plea agreement on the ground that it was unknowing or involuntary. Applt’s Reply Br. at 1-2. In his supplemental en banc brief, however, Mr. Hahn changed tack. He noted generallythat some courts and commentators have questioned whether a defendant can ever knowingly waive an appeal of unforeseen error, and then specifically a sks this court to conclude that “the matter appealed is beyond the scope of the wai ver, and that the waiver was not knowingly and intelligently entered into, and . . . grant Mr. Hahn the relief requested, both on the waiver and on the substantiv e grounds.” Applt’s Supp. Br. at 17, 25. We address the argument advanced in Mr. Hahn’s supplemental brief. -21- rights entered into prior to sentencing cannot be k nowing and voluntary. 11 They assert that in such cases a defendant can never kno wingly and voluntarily waive his appellate rights because he cannot possibly kno w in advance what errors a district court might make in the process of arrivin g at an appropriate sentence. In making their argument, Mr. Hahn and the NACDL rely mainly on United States v. Melancon , 972 F.2d 566, 571 (5th Cir. 1992) (Parker, J., co ncurring) (“I do not think that a defendant can ever knowingly and intel ligently waive, as part of a plea agreement, the right to appeal a sentence thathas yet to be imposed at the time he or she enters into the plea agreement; such a ‘waiver’ is inherently uninformed and unintelligent.”); United States v. Han , 181 F. Supp. 2d 1039, 1042 (N.D. Cal. 2002) (same); United States v. Raynor , 989 F. Supp. 43, 44 (D.D.C. 1997) (same). This argument does not persu ade us. Instead, we find persuasive the analyses of two cir cuits that have addressed and rejected the same argument presented by Mr. Hah n and the NACDL. See12 Other circuits have highlighted the logical failing s of focusing on the

result of a proceeding, rather than on the right re linquished, in analyzing whether an appeal waiver is unknowing or involuntary. See, e.g., United States v. Nguyen , 235 F.3d 1179, 1184 (9th Cir. 2000) (“Under Nguyen’ s view, a waiver of appellate rights would be essentially meaningless; the waiver would be valid if the claims were meritless, but invalid if the claim s were meritorious. The whole (continued...) -22- United States v. Teeter , 257 F.3d 14, 21-23 (1st Cir. 2001); United States v. Khattak, 273 F.3d 557, 560-62 (3d Cir. 2001). In assertin g that an appeal waiver can never be knowing and voluntary, Mr. Hahn and th e NACDL improperly focus on the prospective result of the sentencing proceed ing rather than the right relinquished. Illustrating the fault with this app roach, the court in Teeternoted that the waiver of the right to appeal is no more p rospective than the waiver of the right to trial by jury, which may be permissibly wa ived. Id. at 21 (“Although many. . . waivers [for criminal defendants] pertain to future events—a waiver of the right to trial by jury is a good example—their prospective nature has never been thought to place them off limits or to render the defendant’s act ‘unknowing.’”). It is true that when a defendant w aives his right to appeal, he does not know with specificity what claims of error , if any, he is foregoing. Nevertheless, as the Teetercourt reasoned, this fact has never rendered a defendant’s guilty plea unknowing or involuntary. Id. ; Khattak, 273 F.3d at 561 (“Waivers of the legal consequences of unknown futu re events are commonplace . . . . [and enforceable.]”). 1212 (...continued)

point of a waiver, however, is the relinquishment o f claims regardless of their merit.”); United States v. Howle , 166 F.3d 1166, 1169 (11th Cir. 1999) (“A waiver of the right to appeal includes a waiver of the right to appeal difficult or debatable legal issues—indeed, it includes a waiverof the right to appeal blatant error. Waiver would be nearly meaningless if it in cluded only those appeals that border on the frivolous. . . .”); United States v. Wenger , 58 F.3d 280, 282 (7th Cir. 1995) (“Defendants who appeal from sentences f ollowing plea agreements always point to unanticipated and unwelcome developments. . . . To say that a waiver of appeal is effective if and only if the de fendant lacks grounds for appeal is to say that waivers will not be honored.”). -23- The Supreme Court’s recent decision in United States v. Ruiz , 536 U.S. 622 (2002), reinforces our conclusion. In Ruiz , the Court addressed the validity of a plea agreement in which the defendant waived the ri ght to receive from the prosecutor exculpatory impeachment material and inf ormation relating to affirmative defenses that the defendant might raise at trial. Id. at 628, 633. In upholding such a waiver, the Court rejected any not ion that a defendant must know with specificity the result he forfeits before his waiver is valid: [T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understan ds the nature of the right and how it would likely apply in generalin the circumstances—even though the defendant may not kno w the specific detailed consequences of invoking it. A defendant, for exa mple, may waive his right to remain silent, his right to a ju ry trial, or his right to counsel even if the defendant does not know the spe cific questions the authorities intend to ask, who will likely serv e on the jury, or the particular lawyer the State might otherwise provide

. Id. at 629-30. Therefore, we reject the notion that, as a matter o f law, all presentencing waivers of appellate rights are unknowing and involuntary.13 Generally, we only consider ineffective assistance of counsel claims on

collateral review. See, e.g., United States v. Edgar , 348 F.3d 867, 869 (10th Cir. 2003) (“Although it is well established that we wil l not enforce a waiver that is the product of ineffective assistance of counsel . . . . [w]ith rare exception, a defendant must raise ineffective assistance of coun sel claims in a collateral proceeding, not on direct appeal.”) (citation omitt ed). Our holding today does not disturb this longstanding rule. -24- c. Miscarriage of Justice The third prong of our enforcement analysis require s the court to determine whether enforcing the waiver will result in a misca rriage of justice. Andis , 333 F.3d at 891; Khattak, 273 F.3d at 562-63; Teeter , 257 F.3d at 25. We find that, like the Eighth Circuit, “we have not previously de fined this exception, [but] we have described many of its components.” Andis , 333 F.3d at 891. Appellate waivers are subject to certain exceptions , including [1] where the district court relied on an impermissible factor such as race, [2] where ineffective assistance of counsel i n connection with the negotiation of the waiver renders the waiver in valid, [3] where the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise unlawful. Elliott , 264 F.3d at 1173 (citing United States v. Cockerham , 237 F.3d 1179, 1182 (10th Cir. 2001)). 13 We hold that enforcement of an appellate waiver doe s not result in a miscarriage of justice unless enforcement would result in one o f the four situations enumerated in Elliott

. See id. We further hold that to satisfy the fourth Elliott factor—where the waiver is otherwise unlawful—“the error [must] seriously affect[] the fairness, integrity or public reputati on of judicial proceedings[,]” as that test was employed in United States v. Olano , 507 U.S. 725, 732 (1993).-25- 2. Intra-Circuit Procedure As noted above, “[o]nly through the [efficient] dis missal of [an] appeal will the government receive the benefit of its [appellat e waiver] bargain.” Elliot , 264 F3.d at 1174 (quotation omitted). Invariably, in cases such as this one, the government files a motion to dismiss the appeal aft er the defendant files his notice of appeal. Our practice has been to defer r uling on the government’s motion, refer the motion to the merits panel, and o rder the parties to brief the underlying merits of the case. The government argu es that this practice, in effect, robs it of the benefit of its bargain. We agree. To preserve the benefit of the government’s bargainand employ our appellate waiver enforcement analysis, henceforth, when a defendant who has waived his appellate rights in a plea agreement fil es a notice of appeal and the government wishes to enforce this waiver, the government will file a “Motion for Enforcement of the Plea Agreement.” This motion wi ll address the three-prong enforcement analysis provided above, but not the un derlying merits of the defendant’s appeal. The defendant will then have t he opportunity to respond. The Clerk of the Court will forward the government’ s motion, and any responding briefs, to the panel. The parties will not be dire cted to brief the underlying merits of the defendant’s appeal. If the panel finds that the plea agreement is enfor ceable, it will summarily-26-

dismiss the appeal. If the panel finds the plea ag reement unenforceable, it will issue a ruling consistent with this finding. Curre ntly, 10th Cir. R. 27.2(A)(1) allows only three types of dispositive motions. Th e approach outlined above requires the addition of a fourth type of motion. We will amend the rules accordingly. C. Application To Mr. Hahn’s Appeal We now apply the above-outlined three-prong enforce ment analysis to Mr. Hahn’s appeal, enforce Mr. Hahn’s waiver, and dismi ss.

1. Scope of Mr. Hahn’s Waiver Mr. Hahn’s current appeal falls within the scope of his waiver of appellate rights. Although we narrowly construe the scope of Mr. Hahn’s waiver of appellate rights, Chavez-Salais , 337 F.3d at 1173, “[t]his court will hold a defendant to the terms of a lawful plea agreement[, ]” Atterberry , 144 F.3d 1299, 1300 (10th Cir. 1998). Mr. Hahn signed a broad wai ver of appellate rights. It states that he “knowingly waive[d] the right to app eal any sentence within the maximum provided in the statutes of conviction or t he manner in the which that sentence was determined on the grounds set forth inTitle 18, United States Code, Section 3742 or on any ground whatever.” Mr. Hahn’ s argument—that the district court failed to recognize its discretion to impose the sentence in this case concurrently with the sentence in the marijuana-and -firearms14 Mr. Hahn does note that at the sentencing hearing h is counsel indicated

that he believed Mr. Hahn was entitled to appeal th is question despite the appeal waiver. Nevertheless, these statements made after the entry of the appeal waiver and the district court’s acceptance of the guilty p lea cannot overcome the plain language of the appeal waiver. -27- case—unambiguously falls within the scope of this w aiver. Moreover, nothing in the record indicates that he retained the right to appeal this sentencing question. 14 We conclude, therefore, that this appeal falls with in the scope of Mr. Hahn’s waiver. 2. Knowing and Voluntariness of Mr. Hahn’s Waiver We only enforce appeal waivers that defendants ente r into knowingly and voluntarily. Elliott , 264 F.3d at 1173. Here, absent the argument thatall presentence waivers of appellate rights are not kno wing and voluntary, which we rejected above, Mr. Hahn fails to provide support f or the notion that he did not knowingly and voluntarily enter into his plea agree ment. Mr. Hahn bears the burden on this score. United States v. Edgar , 348 F.3d 867, 872-73 (10th Cir. 2003) (defendant “has the burden to present evidenc e from the record establishing that he did not understand the waiver.”). Therefor e, we hold that Mr. Hahn entered into this agreement knowingly and voluntari ly.

3. Miscarriage of Justice and Mr. Hahn’s Waiver We will enforce Mr. Hahn’s appellate waiver unless we find that the enforcement of the waiver would constitute a miscar riage of justice. To-28-

constitute a miscarriage of justice, enforcement of Mr. Hahn’s waiver must result in one of the four scenarios enumerated in Elliot . 264 F.3d at 1173. Moreover, to meet the fourth Elliottfactor (i.e., enforcement of the waiver is otherwi se unlawful) the alleged error must satisfy the fourthprong of the Olano plain error

test. See Olano , 507 U.S. at 732 (“[T]he error [must] seriously af fect[] the fairness, integrity or public reputation of judicia l proceedings[.]”) (internal citations omitted). Here, the district court did not rely upon an imper missible factor such as race in sentencing Mr. Hahn. See Elliot , 264 F.3d at 1173. Mr. Hahn does not allege ineffective assistance of counsel in connect ion with the negotiation of the appellate waiver. See id. Mr. Hahn’s sentence does not exceed the statutory maximum. See id. Finally, even if the district court’s conclusion regarding its lack of sentencing discretion was in error, a deter mination that we need not reach here, this error does not seriously affect the fair ness, integrity, or public reputation of judicial proceedings. See Olano , 507 U.S. at 732; Elliot , 264 F.3d at 1173. Indeed, the district court’s consecutive sentence is specifically allowed by 18 U.S.C. §§ 924(c) and 3584. Subjecting Mr. Hahn to a sentence sanctioned by Congress does not constitute an error seriously affecting the fairness, integrity, or public reputation of judicial proceedings. As s uch, we find that enforcing Mr. Hahn’s waiver of appellate rights would not constitute a miscarriage of justice.15 In this case, the government moved to dismiss Mr. H ahn’s appeal for lack

of subject matter jurisdiction. We rejected this a rgument. Nevertheless, given that Mr. Hahn’s waiver of appellate rights is enfor ceable, which precludes us from reaching the merits of this appeal, “this court has inherent authority, wholly aside from any statutory warrant, to dismiss [this] appeal . . . as frivolous [because] the appeal . . . presents no arguably mer itorious issue for our consideration.” Pillay v. Immigration & Naturalization Serv. , 45 F.3d 14, 17 (2d Cir. 1995) (per curiam). -29- Because we are satisfied that the current appeal is within the scope of Mr. Hahn’s waiver, that the waiver was knowing and volu ntary, and that enforcing the waiver would not result in a miscarriage of justice , we enforce Mr. Hahn’s waiver and dismiss this appeal. 15
IV. CONCLUSION This Court retains subject matter jurisdiction overappeals filed after a criminal defendant signs an enforceable waiver of appellate rights. Although we retain subject matter jurisdiction, upon motion by the government, we will conduct the three-prong enforcement analysis discus sed above. If we conclude that the waiver is unenforceable, we will issue a r uling consistent with this finding. If we conclude that the waiver agreement is enforceable, we will dismiss. Applying these principles here, we hold M r. Hahn’s waiver of appellate rights enforceable and DISMISS.No. 01-2301 , United States v. Hahn

LUCERO , joined by SEYMOURand HENRY , Circuit Judges, concurring in part, dissenting in part. I join parts I, II, III.A and III.B of the per curi am opinion. We resolve today the primary question on which en b anc review was granted, that we have subject matter jurisdiction t o consider challenges to enforceable waivers of appellate rights. My point of departure from the majority opinion, compelling my dissent, is my conclusion th at the claim before us is reviewable because it falls outside the scope of Ma rcus Hahn’s waiver of appeal. Upon review of the merits, I conclude that the dist rict court unambiguously misapprehended its discretion in sentencing Hahn, and that its misapplication resulted in a sentence potentially five years great er than the one that could have been imposed. I would remand for resentencing in a ccordance with the corrected standard of discretion. Let me turn first to the scope of the waiver. Hahn claims that the district court’s misapprehension of its sentencing discretio n is an allegation of error beyond the scope of his appeal waiver that we shoul d consider. The majority predicates its rejection of Hahn’s claim on its con clusion that Hahn intended to waive the right to appeal any sentence other than o ne beyond the statutory maximum and knowingly agreed to accept the chance h e might be sentenced by a judge who was ignorant of his discretion to apply c oncurrent versus consecutive sentences under the relevant statutes.-2-

This predicate leads to the majority’s erroneous co nclusion. Plea agreements and appeal waivers rest on the basic ass umption that a sentencing court will correctly understand the statutory schem e and sentencing guidelines that are to be utilized in sentencing a defendant. We have carved out exceptions to the enforceability of appeal waivers, see , e.g. , the Elliotfactors, 264 F.3d at 1173, primarily because their use in sentencing can not be reasonably supported by contract principles under which either party could be “deemed to have accepted such a risk or be entitled to such a result as a be nefit of the bargain.” See United States v. Yemitan , 70 F.3d 746, 748 (2d Cir. 1995) (explaining that a sentence tainted by racial bias is outside the scope of an appeal waiver). Just as a defendant who contracts for benefits in exchange fo r the waiver of appellate rights may reasonably presume the district court wi ll not enter a sentence based on race or impose a sentence beyond the sentencing guidelines, so also may that defendant presume that the district court correctlyunderstands its lawful statutory authority to impose a certain sentence. Cf. United States v. Broughton-Jones , 71 F.3d 1143, 1145, 1147 (4th Cir. 1995) (declining to enforce the defendant’s appeal waiver when her sentence included a term of imprisonment and monetary restitution, on the grounds that imposition of rest itution, like an upward departure, was outside the scope of the waiver). Hahn alleges that the district court erroneously co ncluded that it lacked1 Absent unambiguous statements to the contrary, we p resume that a district

court was aware of its legal authority to impose a given sentence. See United States v. Fortier , 180 F.3d 1217, 1231 (10th Cir. 1999) (“[W]e treatambiguous statements made by district judges as though the ju dge was aware of his or her legal authority to depart [from sentencing guidelin es] but chose instead, in an exercise of discretion, not to depart.”); United St ates v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir. 1994) (determining that there is no appellate jurisdiction to review a sentence unless the sentencing court clear ly misunderstands its authority to grant a downward departure). Notably, our resol ution of such ambiguities in favor of the sentencing court is not in accord with several other circuits that have remanded for further clarification. See , e.g. ,United States v. Smith , 278 F.3d 605, 611 (6th Cir. 2002); United States v. Powell , 269 F.3d 175, 179–180 (3rd Cir. 2001); United States v. Rojas-Millan , 234 F.3d 464, 474, 475 (9th Cir. 2000); United States v. Aramony , 166 F.3d 655, 665 (4th Cir. 1999); United States v. Vahovick , 160 F.3d 395, 398–399 (7th Cir. 1998); United States v. Graham , 83 F.3d 1466, 1481 (D.C. Cir. 1996). -3- discretion to impose the sexual-exploitation senten ce concurrently with the marijuana-and-firearms sentence. Because the major ity reasons that whether the district court misapprehended its own discretion to impose these sentences consecutively or concurrently was among the allegat ions of error that Hahn surrendered in his appeal waiver, it declines to ad dress the strength of Hahn’s arguments on appeal. I disagree. Although a mere allegation that the district court misapprehended the law would not justify an e xception to our enforcement of an appeal waiver, 1 when a sentencing court clearly and unambiguously misunderstands its legal authority, and such misund erstanding potentially affects the sentence imposed, I would decide that we may—in fact, must—evaluate the merits of the defendant’s arguments on appeal, notw ithstanding his waiver of-4-

appellate rights. A sentencing court’s explicit mi sunderstanding of the existence of its legal power to impose a certain sentence is not only manifestly outside the scope of the parties’ reasonable expectations in ba rgaining for an agreement that includes a waiver of appellate rights, but also con travenes basic public policy, which requires that a sentencing court correctly pe rceive its own legal authority. Consequently, if Hahn is correct that the district court had discretion to impose a concurrent sentence and explicitly misapprehended i ts lawful statutory authority, I would conclude that the government may not invoke H ahn’s waiver of appellate rights to bar our consideration of the matter. Turning to an analysis of the merits in the instantcase, Hahn argues that the district court clearly and unambiguously misapp rehended its own discretion to impose Hahn’s sexual-exploitation sentence concurre ntlywith his marijuana-andfirearms sentence. Generally, a district court ret ains discretion to impose sentences concurrently or consecutively. 18 U.S.C. § 3584; United States v.
Contreras , 210 F.3d 1151, 1152 (10th Cir. 2000); United Stat es v. McCarty , 82 F.3d 943, 950 (10th Cir. 1996). Section 924(c), ho wever, carves out an exception to this rule, providing that for a defendant convic ted of possessing a firearm in furtherance of a drug-trafficking crime, “no term o f imprisonment imposed . . . shall run concurrently with any other term of impri sonment imposed on the person.” 18 U.S.C. § 924(c)(1)(D)(ii).-5-

The district court interpreted § 924(c)(1)(D)(ii) t o prohibit the imposition of concurrent sentences in Hahn’s case and thus cle arly and unambiguously ruled that it had no discretion to impose the sexual-expl oitation sentence concurrently with the marijuana-and-firearms sentence. For example, during the sentencing hearing, the court stated: The first [issue] involves whether the sentence that will be imposed in this [sexual-exploitation] case must be ordered to run c onsecutively to the sentence that was imposed with [the marijuana-and-f irearm case]. After reviewing all of the relevant law and the parties’ briefs on the case, it’s my conclusion that I have no alternative but to order that it be imposed as a consecutive sentence

. (2 Appellant’s App. at 44 (emphasis added).) Simil arly, in its written order, the court found: “The sentence in [the sexual-exploitation] case must run consecutively to the sentence in [the marijuana-and -firearms case]. This conclusion is based on the plain language of 18 U.S .C. § 924(c)(1)(D), its legislative history . . . and the holding in United States v. Gonzales , 520 U.S. 1, 9-10 (1997).” (2 Appellant’s App. at 34 (citation omitted).) Moreover, defense counsel’s statements at the sente ncing hearing suggest that the district court may have been inclined to i mpose the sexual-exploitation sentence to run concurrently with the marijuana-and -firearms sentences, had it perceived its discretion to do so: “I understand Y our Honor feels that you are required by law to impose this amount of time. You indicated on June 6 that it would have been your intention, had you not been co nvinced that you must run-6-

the sentence consecutively, that 40 years was a suf ficient sentence.” (2 Appellant’s App. at 80.) Even setting defense coun sel’s statement aside, the court’s unequivocal statements demonstrate that it clearly and unambiguously concluded that it had no discretion to impose a con current sentence as a matter of law. As to Hahn’s contention that the district court haddiscretion to impose the sexual-exploitation sentence concurrently with the portion of the marijuana-andfirearms sentence attributable to the two § 924(c) convictions, his argument fails. Under the plain language of § 924(c) and Supreme Co urt precedent, the district court correctly concluded that it did not have disc retion to impose the sentence to run concurrently with the two firearms sentences. See United States v. Gonzales , 520 U.S. 1, 11 (1997) (holding that the plain langu age of § 924(c) prohibits a federal district court from imposing a term of impr isonment for a § 924(c) violation to run concurrently with anyother sentence, whether it be a state or federal sentence). Although Hahn attempts to disti nguish Gonzales by arguing that it does not apply to situations in which the § 924(c) conviction is imposed first , before the sentences for any other crimes are imp osed—a scenario that the Supreme Court in Gonzales does not address—this interpretation does not comport with the plain language of the statute. Se e id. at 11. Section 924(c) provides that “no term of imprisonment imposed . . . shall run concurrently with-7-

anyother term of imprisonment imposed on the person,” without exception. § 924(c)(1)(D)(ii) (emphasis added). Therefore, Hahn’s arguments on this point have not demonstrated that the district court expli citly misunderstood its legal authority in interpreting § 924(c) to impose a cert ain sentence, nor has he demonstrated any of the other narrow exceptions und er which we decline to enforce appeal waivers. In my judgment, however, the district court erred i n finding that it had no discretion to impose the sexual-exploitation senten ce concurrently with the portion of the marijuana-and-firearms sentence attr ibutable to the substantive marijuana convictions notarising under § 924(c). In Gonzales , although the district court imposed the sentences for the § 924( c) violations to run consecutivelyto defendants’ state sentences and the other feder al sentences, it permitted the federal non-firearms sentences to runconcurrentlywith the state sentences. 520 U.S. at 3. The Supreme Court noted : “[§ 924(c)] does not . . . limit the court’s authority to order that other fed eral sentences run concurrently with or consecutively to other prison terms—state o r federal—under § 3584.” 520 U.S. at 11. Accordingly, nothing in § 924(c) c abined the district court’s discretion under § 3584 to order that the sexual-exploitation sentence run concurrently with the total five-year sentence for the substantive marijuana convictions.-8-

During the sentencing hearing in the present case, the district court did not distinguish between the various components of the m arijuana-and-firearms sentence when it concluded that it had “no alternat ive but to order” that the sexual-exploitation sentence run consecutively to i t. (2 Appellant’s App. at 44.) Therefore, when the district court assumed that it was required to impose the sexual-exploitation sentence consecutively to the § 924(c) firearms sentences as well as consecutively to the sentences for the substantive marijuana convictions under 21 U.S.C. §§ 841 and 856, it clearly misperce ived its discretionary authority. Under § 3584, the district court retain ed discretion to impose the sexual-exploitation sentence to run concurrently wi th the five-year total sentence for the substantive marijuana convictions, which wo uld permit it to impose a total sentence of approximately fifty-nine years rather t han the sixty-four years ultimately imposed, a difference of approximately f ive years. Remanding to the district court to allow it to deci de whether it wished to exercise its lawful discretion to sentence Hahn con currently would have obvious potential benefits to Hahn. Not as obviously, ther e would also be significant benefits for the public

. Retaining defendant in prison for five years, if the district court did not intend to do so, is a costly proposit ion both financially and socially. In summary, I would conclude that the trial court’s misapprehension of its sentencing authority falls outside the scope of the plea agreement and is-9-

reviewable. I would also conclude that the trial c ourt explicitly and wrongly determined that it lacked discretion with respect t o the sentence for the substantive marijuana convictions. On that basis, I would reverse and remand this case for resentencing, expressing no predispositionon the merits of the discretionary issue, but rather to uphold the gener al expectations of parties who enter plea agreements with appeal waivers that the result of such agreements will comport with basic principles of judicial fairness and our adjudicatory process. I would otherwise affirm.No. 01-2301, United States v. Hahn

MURPHY , Circuit Judge, joined by KELLY , HARTZ , O’BRIEN , and TYMKOVICH , Circuit Judges, dissenting.

I. INTRODUCTION This court sua sponte set this case for initial en banc review, 28 U.S.C . § 28(c), and ordered the parties to brief the followi ng question: Do we have subject matter jurisdiction to resolve a sentencing appeal when the parties have entered into a plea agreement with an appeal waiver clause? Although it may seem mundane and purely technical to some, this questiongoes to the very foundation of our constitutional scheme. See Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 101 (1998) (“The statutory and (especially ) constitutional elements of jurisdiction are an essential ingredient of separat ion and equilibration of powers, restraining the courts from acting at certain times , and even restraining them from acting permanently regarding certain subjects.”); see also generallyErwin Chemerinsky, Federal Jurisdiction § 2.1 (4th 3d. 20 03) (emphasizing importance of justiciability doctrines in maintaining separati on of powers, preserving judicial resources, improving judicial decision-making, and promoting fairness). In an opinion that seems to resolve the question of Article III jurisdiction too easily, the majority first holds that this appe al continues to present the court with a justiciable case or controversy because this court has “the power to grant a legally cognizable remedy requested by a party—name ly, voiding the plea-2-

agreement.” Majority Op. at 14-15. In an apparentdisconnect from this jurisdictional basis, however, the majority then pr oceeds to the question whether this court should exercise its discretion to take up the merits of Hahn’s sentencing appeal, after having already concluded that Hahn knowingly and voluntarily entered into a valid waiver of appellate rights and that the matter Hahn seeks to appeal falls within the scope of that waiver . Majority Op. at 25-28. Because a valid waiver of appellate rights settles a sentencing dispute, thereby rendering nonjusticiable all matters within the scope of the waiver, the majority is incorrect in holding that this court ha s jurisdiction over the merits of Hahn’s sentencing appeal. More specifically, the m ajority’s determination that this case is generally justiciable because this cou rt has the power to void the plea agreement is incorrect. Instead, as set out in thi s court’s existing precedents, questions regarding the validity and scope of an ap peal waiver are evaluated pursuant to this court’s inherent jurisdiction to d etermine its own jurisdiction. Once that analysis is complete and it is determined that the appeal waiver is valid and the matter sought to be appealed is within the parameters of the waiver, the merits of the sentencing appeal must be dismissed a s moot. Within this framework, rather than the one employed by the majo rity, Hahn’s appeal waiver was knowingly and voluntarily entered as part of hi s plea agreement and the matter sought to be appealed falls within the scope of the waiver. Thus, Hahn’s-3-

sentencing appeal is moot and this case should be d ismissed for lack of Article III jurisdiction.

II. ANALYSIS A. A Valid Appeal Waiver Deprives this Court of Jurisdiction Over All Matters Within the Scope of the Waiver 1. Article III Jurisdiction
In United States v. Rubio , 231 F.3d 709 (10th Cir. 2000), the defendant pleaded guilty to conspiring to traffic in methamph etamine; he entered into a plea agreement containing the following waiver of appell ate rights: “The Defendant agrees to waive his right to appeal the sentence he receives as a result of this Plea Agreement.” Id. at 711 (quotation omitted). When the district cou rt denied him a downward adjustment to his offense level under the United States Sentencing Guidelines for a mitigating role in the offense, th e defendant appealed. Noting the existence of the waiver of appellate rights, th e Rubio panel began by explaining that this court “would certainly overrea ch [its] jurisdiction to entertain this appeal [if] the plea agreement deprived Defend ant of the right to appeal.” Id. To emphasize this point, the Rubio panel concluded that it must address the issue despite the government’s failure to raise it in a t imely manner “because we have an independent obligation to examine our subject matter jurisdiction.” Id. at 711 n.1; see also id. (“The Government may properly argue the waiver pro vision is a-4-

complete bar to Defendant’s appeal, deprives us of jurisdiction, and requires dismissal.”). Nevertheless, the Rubio panel held that this court always has “jurisdiction to determine [its own] jurisdiction.” Id. at 711. Accordingly, “[t]o avoid dismissal of his appeal,” the burden was on the defendant to “show why [this court] should not enforce the waiver provisio n of the plea agreement.” Id. The court in this case ordered initial en banc cons ideration to determine the continuing viability of Rubio ’s holding that a waiver of appellate rights depriv es this court of subject matter jurisdiction over sent encing appeals. Id. The majority proceeds to overrule Rubio and replace it with the following one-size-fits-al l rule: “[W]e hold that this Court has both statutory and c onstitutional subject matter jurisdiction over appeals when a criminal defendanthas waived his appellate rights in an enforceable plea agreement.” Majority Op. at 17. Having determined that valid appeal waivers do not implicate this cou rt’s subject matter jurisdiction, the majority then moves on to adopt a “contract ana lysis tempered by public policy” to determine whether to enforce an appellat e waiver. Id. at 18-25. The problem with the majority opinion is three-fold: (1 ) the majority offers no rationale at all for treating settlement agreements in the criminal context differently than settlement agreements in the civil context; (2) the majority’s assertion that the merits of Hahn’s sentencing appe al are justiciable simply because the court could choose to void the appeal w aiver is not supported by-5-

applicable precedent; and (3) the majority’s one-si ze-fits-all rule is untethered from its jurisdictional rationale in this case and, furthermore, simply will not apply in every case. Unfortunately, the majority rejects the government’ s equation of appeal waivers in criminal cases to settlement agreements in civil cases with almost no analysis of the underlying basis for plea agreement s. See Majority Op. at 13-14. This is odd for at least the following two reasons. First, plea agreements and the promises contained therein, just like settlement ag reements, are governed by contract principles. United States v. Rockwell Int’l Corp. , 124 F.3d 1194, 1199 (10th Cir. 1997); United States v. Cooper , 70 F.3d 563, 565 (10th Cir. 1995). Second, the very foundation of the analytical model adopted by the majority is the determination that appeal waivers must be evaluated pursuant to a contract analysis. Majority Op. at 18-19. A waiver of appellate rights is a contract between the defendant and the government, for due consideration, to either comple tely or partially settle all sentencing matters by submission to the district co urt for a final, binding determination. In this case, for instance, Hahn ag reed to plead guilty to counts three, four, five, six, fifteen, and sixteen of the indictment; to plead no contest to count fourteen of the indictment; and to waive the right to appeal any sentence imposed by the district court within the maximum pr ovided in the statutes of-6-

conviction. In exchange, the government stipulated that Hahn had clearly demonstrated an affirmative acceptance of responsib ility for his criminal conduct for purposes of a downward adjustment under U.S.S.G . § 3E1.1 and agreed to dismiss all remaining counts of the indictment at t he time of sentencing. “With limited exceptions, a settlement involving al l parties and all claims moots an action.” Tosco Corp. v. Hodel , 804 F.2d 590, 592 (10th Cir. 1986) (citing 13A Charles Alan Wright et al., Federal Practice and Procedure § 3533.2, at 233 (2d ed. 1984) [hereinafter “Wright & Miller” ]). “This principle applies to all final settlement agreements even if they contai n executory terms.” Id. Likewise, when the parties enter into a partial settlement encompassing specific issues, no live case or controversy remains as to those specific issues. See 13A Wright & Miller § 3533.2, at 234 (“A partial settle ment moots the issues involved in the settlement, but not those that the parties d id not intend to settle.”). The power of the federal judiciary to act is specif ically limited to live cases or controversies between the parties to the litigat ion. U.S. Const. art III, § 2. The “irreducible constitutional minimum of standing” ha s three requirements: injury in fact, causation, and redressability. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560 (1992). “This triad . . . constitutes the core of Article III’s case-orcontroversy requirement, and the party invoking fed eral jurisdiction bears the burden of establishing its existence.” Steel Co. , 523 U.S. at 103-04 (footnote1 The majority’s reliance on Bhattacharya v. Copple , 898 F.2d 766 (10th

Cir. 1990) (per curiam), to support its conclusion that Hahn’s sentencing appeal is justiciable is odd. See Majority Op. at 16-17. Contrary to the majority’s assertion, Bhattacharyadid not hold that a case or controversy continued to exist despite the settlement agreement merely because a s tate statute permitted the trial court to exercise discretion in the awarding of att orneys’ fees. Id. at 17. Instead, (continued...) -7- omitted). “[M]ootness [is] the doctrine of standi ng set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence ( mootness).” United States Parole Comm’n v. Geraghty , 445 U.S. 388, 397 (1980) (quotation omitted). An appellant who has either partially or completelywaived his right to appeal in exchange for concessions on the part of t he government does not suffer an injury in fact within the meaning of Article III as to any matter within the scope of the appeal waiver. Although a genuine dis pute existed between the parties at all points until the entry of the guilty plea, the dispute was settled by the defendant’s entry into the plea agreement. Cf. 13A Wright & Miller § 3533.2, at 231 (“Mootness problems arise from a wide array of circumstances in which the plaintiff has secured the requested relief by some means other than final decision of the litigation, or has abandoned the quest.”). A defendant who has waived his appeal rights is contractually bound to accept the determinations made by the district court following a sentencing hearing and, as long as that contract is valid, any opinion by this court would merely be advisory. 1 Id. § 3533.2, at 2341 (...continued)

the court in Bhattacharyaundertook an analysis of the scope of the settleme nt agreement and concluded that the parties specifical ly intended to incorporate the provisions of the applicable state statute, includi ng the right to appeal, into the settlement agreement. 898 F.2d at 768-69. In fact , the scope analysis undertaken in Bhattacharyaspecifically recognizes that had the parties inten ded to give the district court unfettered discretion in deciding on the award of attorneys’ fees, the case would not be justiciable: The settlement agreement must be interpreted in lig ht of § 7-121b, which empowers a court to approve or disapprove anyattorneys’ fees paid by a litigant in a medical malpractice action. Obviously, if a court disapproves, under § 7-121b, of the amount of attorneys’ fees to be paid by a litigant, that is an adverse determ ination which is reviewable. Given the district court’s role in thi s case under § 7-121b, the attorneys’ fees provision of the settle ment agreement must be read as contemplating that role and merely suggesting $450,000.00 as reasonable attorneys’ fees, but not agreeing in advance to the district court’s ultimate determinat ion under § 7-121b. We simply are not persuaded that the attorneys’ fee s provision of the settlement agreement contains any expression of int ent to convert the district court into an arbitrator or umpire whose d etermination with respect to attorneys’ fees was agreed to in advance by the parties. Instead, the settlement agreement recognized the in dependent determination the district court was required to ma ke under § 7-121b. The determination ultimately made was adverse to pl aintiffs’ attorneys. Under these circumstances, there is an appealable judgment, and the merits of the arguments raised byplaintiffs’ attorneys will be reached on appeal. Id. Unlike in Bhattacharya , the parties in this case did specifically contemp late and intend to vest the determination of sentencing questions, like the merits issue in this case, exclusively in the district court. See Majority Op. at 26 (“Mr. Hahn’s argument—that the district court failed to recogniz e its discretion to impose the sentence in this case concurrently with the sentenc e in the marijuana-and-firearms case—unambiguously falls within the scope of this w aiver. Moreover, nothing in the record indicates that he retained the right to appeal this sentencing question.”). Accordingly, in contrast to the major ity’s assertions, Bhattacharya actually supports the conclusion that the merits of Hahn’s sentencing appeal are

(continued...) -8-1 (...continued)

moot.

2 For this reason, it seems odd for the majority to a ssert that Rubio is inconsistent with this court’s decision in United States v. Black, 201 F.3d 1296, 1301 (10th Cir. 2000). See Majority Op. at 4. The use of contract principles in Black to determine whether a live dispute existed betwee n the parties was perfectly consonant with the determination in Rubio that an otherwise valid appeal waiver deprives this court of subject matterjurisdiction over all issues within the scope of the waiver. Furthermore, as se t out more fully below, merely because this court will closely scrutinize an appea l waiver to make sure that it is not void as against public policy does not mean that a valid waiver, like the one at issue here, does not render nonjusticiable all matt ers within the scope of the agreement. -9- (“[M]ootness questions should be answered according to the intent of the parties and more general contract principles.”). 2 Thus, a defendant like Hahn who has waived his appellate rights is not aggrieved in the Article III sense by an adverse ruling at sentencing; that is the exact risk he acc epted when he entered into the appeal waiver. Because the majority cites no support for its impli cit assertion that criminal settlements are somehow different in effect than ci vil settlements when it comes to the question of mootness, it is forced to rely s olely on Sibron v. New York, 392 U.S. 40 (1968), for the broad proposition that “thi s case is not moot because we have the power to grant a legally cognizable remedy requested by a party—namely, voiding the plea agreement.” Majority Op. at 14-15. As this court’s opinion in Rubio made clear, this court always has “jurisdiction to determine [its] own jurisdiction.” 231 F.3d at 711 . Accordingly, in an-10-

appropriate case, as set out more fully below, it m ay be necessary to analyze whether the plea agreement is invalid and whether t he matter sought to be appealed is within the scope of the waiver in orderto determine whether a particular appeal presents a justiciable case or co ntroversy and thus invokes this court’s jurisdiction. The mere fact that one or mo re aspects of a case are justiciable does not mean, however, that all aspect s of the case are justiciable. See Essence, Inc. v. City of Fed. Heights , 285 F.3d 1271, 1277 n.4 (10th Cir. 2002) (holding that although plaintiff’s claims fordamages were not moot, their claims for injunctive relief were moot); Smith v. Plati , 258 F.3d 1167, 1179 (10th Cir. 2001) (“An issue becomes moot when it becomes impossible for the co urt to grant any effectual relief whatsoever on that issue to a prevailing party.” (quotation omitted) (emphasis added)). This court’s decision in Smith is particularly instructive. In Smith , the plaintiff filed a complaint in state court alleging that the defendants had violated both his First Amendment rights and state law. 258 F.3d at 1172-73. After the defendants removed the case to federal court, the p laintiff commenced a virtually identical action in state court, omitting the feder al claims so that the action could not be removed to federal court. Id. After discovering the parallel state action, the district court ordered the plaintiff to dismiss it. Id. at 1173. The district court then dismissed the plaintiff’s complaint pursuant t o Fed. R. Civ. P. 12(b)(1) and-11-

12(b)(6). Id. On appeal, the plaintiff asserted that the distri ct court had erred in dismissing his First Amendment claims and in orderi ng him to dismiss the parallel state action. Id. This court affirmed the dismissal of the plaintif f’s First Amendment claims and then concluded that the merits resolution mooted the plaintiff’s appeal of the district court’s order th at plaintiff dismiss his parallel state action. Id. at 1179. According to the court

[Defendant] objects that the district court erred w hen it ordered him to dismiss the state court action whichasserted virtually identical claims. Given that we affirm the dismiss al of [defendant’s] substantive claims, we hold that the issue is moot. An issue becomes moot when it becomes impossible for the court to gr ant “any effectual relief whatsoever” on that issue to a pre vailing party. [Defendant] had an opportunity to fully and fairly litigate the state law claims in federal district court and to r aise those issues on appeal. Those claims are now disposed of and any s ubsequent litigation would be barred by res judicata. Id. (citations omitted).
As Smith makes clear, the mere fact that some aspect of a c ase is justiciable does not mean that all aspects of that case are jus ticiable. Like in Smith , the conclusion embraced by the majority that Hahn’s app eal waiver is valid and that the substantive sentencing matter sought to be appe aled is within the scope of the waiver, deprives this court of the ability to grantHahn any effective relief as to his sentencing appeal. The proper course, then, is to dismiss Hahn’s sentencing appeal as moot. The majority’s contrary determinat ion—that the entire case is3 Nor does the Supreme Court’s decision in Sibron v. New York, 392 U.S. 40

(1968), support the majority’s conclusion that this case is generally justiciable because this court could possibly void the plea agr eement. In Sibron , the defendant pleaded guilty in New York state court to possession of heroin, but expressly preserved his right to appeal the trial c ourt’s denial of his motion to suppress the heroin. Id. at 44-45. Before his appeal could be decided by t he Supreme Court, the defendant’s sentence expired. Id. at 50. In rejecting the contention that the appeal was mooted by the expiration of the defendant’s sentence, the Court concluded that because criminal convictions are presumed to entail collateral legal consequences, and because t hose consequences would be eliminated by a ruling in the defendant’s favor, th e appeal was not moot. Id. at 54-58. It must be noted that in Sibron the “‘possibility’” that preserved the case from the “‘limbo of mootness,’” Majority Op. at 15 (quoting Sibron , 392 U.S. at 55), was the possibility that the defendant would s uffer some consequence in the future flowing from the conviction. See generally Spencer v. Kemna , 523 U.S. 1, 8-14 (1998) (discussing Sibron and noting that its presumption of collateral consequences would not be expanded beyond the narro w confines of that case). Unlike the defendant in Sibron who preserved his right to appeal the adverse suppression ruling before entering into the guilty plea, Hahn specifically contracted away his right to challenge the sentence handed down by the district court. Thus, although the consequences of the dist rict court’s sentencing ruling are direct, Hahn is not aggrieved by them in the Article III sense because he received the very thing he bargained for: he receiv ed the benefits of a three-point reduction in his base offense level and the dismiss al of several counts of the indictment in exchange for agreeing to have the dis trict court be the final arbiter of any sentencing disputes. In order to reach the merits of Hahn’s sentencing appeal, this court must first determine that the pl ea agreement, and hence the appeal waiver, is invalid. Having concluded otherw ise, Hahn’s sentencing appeal is moot. Sibron is not to the contrary. -12- justiciable because the court could hypothetically grant Hahn’s request to void the plea agreement—simply finds no support in the cases cited by the majority. 3 Upon ruling that this entire appeal is justiciable simply because this court could void the plea agreement, the majority then ta kes a giant step beyond in announcing a broad jurisdictional rule unrestrictedby the facts of this case. The-13-

majority repeats on two occasions that “an appeal c hallenging the enforceability of an appellate waiver is not moot because we have the power to afford the legally cognizable relief—voiding the plea—requeste d by a party.” Majority Op. at 17; see also id. at 14-15. Unfortunately, the majority then states a broad jurisdictional holding untethered from this rationa le: “[W]e hold that this Court has both statutory and constitutional subject matte r jurisdiction over appeals when a criminal defendant has waived his appellate right s in an enforceable plea agreement .” Id. at 17 (emphasis added). The majority’s broad, con cluding assertion that it has jurisdiction over all sentenc ing appeals involving an “enforceable” plea agreement simply cannot be squar ed with its underlying assertion that this appeal is justiciable because, and only because, this court can afford Hahn a remedy that he specifically requested—the voiding of his plea agreement. It is unlikely that every defendant see king to appeal a district court sentencing decision in the face of an appeal waiverwill assert that the plea agreement is invalid. In such cases, under the maj ority’s own rationale, the appeal should not be justiciable because no party h as requested that the plea agreement be voided. See Majority Op. at 15, 18; see also id. at 15 (distinguishing Tosco on the following ground: “In that case, neither na med party challenged the validity of the settlement agreement ; thus we could not have granted ‘any effectual relief whatsoever’ to the pa rties without voiding the4 In fact, Hahn’s own arguments in this regard have p resented this court

with a moving target. In his three-judge panel rep ly brief, Hahn specifically indicated that he was not attempting to invalidate the plea agreement on the ground that it was unknowing or involuntary. Hahn Reply Br. at 1-2 (noting that in its response brief the government had anticipate d an argument by Hahn that the appeal waiver was not knowing and voluntary, labeli ng the government’s argument as the interposition of a “straw m[a]n,” a nd affirmatively noting that he “does not seek to withdraw his plea”). Although Hahn did state in passing in his panel reply brief that the appeal waiver was not kn owing and voluntary to the extent it would prohibit this particular appeal, hi s arguments were clearly directed to the scope of the appeal waiver rather than its v alidity. Id. at 4 (“Here, it was clear from the record that Mr. Hahn had not contemp lated waiving his right to appeal the district court’s incorrect interpretatio n of the law as requiring that the sentence in this case be imposed consecutively to aprevious, unrelated case. Thus, at least as to that aspect of the district co urt’s sentencing order, Mr. Hahn’s waiver cannot be said to have been knowing and volu ntary.” (record citation omitted)). In his supplemental en banc brief, however, Hahn appears to have changed tack. He notes generally that some courts and comm entators have questioned whether a defendant can ever knowingly waive an app eal of unforeseen error, and then specifically asks this court to conclude that “the matter appealed is beyond the scope of the waiver, and that the waiver was no t knowingly and intelligently entered into, and . . . grant Mr. Hahn the relief r equested, both on the waiver and on the substantive grounds.” Hahn Supp. Br. at 17, 25. In light of this language in Hahn’s supplemental en banc brief, the majority chooses to address the question whether Hahn’s appeal waiver was knowinglyentered. Under the majority’s jurisdictional rationale, this procedura l history creates an interesting question: Was the case as presented to the three-ju dge panel justiciable? -14- settlement itself, which neither party sought.”). 4 Thus, the majority has compounded its error in asserting that all aspects of this appeal are justiciable merely because one aspect of the appeal is justicia ble by concluding its jurisdictional analysis with an exceedingly expansi ve assertion of jurisdiction untethered from its underlying rationale.-15-

2. Statutory jurisdiction The conclusion of this dissent that a valid waiver of appellate rights moots a sentencing dispute, thereby rendering nonjusticiable all matters within the scope of the waiver, makes it unnecessary to analyze whet her such waivers have any impact on this court’s statutory authority under 18 U.S.C. § 3742 to review district court sentencing decisions. See Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 578, 584-85 (1999) (holding “that there i s no unyielding jurisdictional hierarchy” mandating that questions of subject matt er jurisdiction be resolved before questions of personal jurisdiction); Boyce v. Ashcroft , 268 F.3d 953, 955 (10th Cir. 2001) (relying on Ruhrgas to hold that this court was entitled to dismiss case on Article III mootness grounds instea d of determining whether district court had statutory authority to entertain 28 U.S.C. § 2241 petition). As a consequence, this dissent offers no view on this qu estion. Nevertheless, it is important to note serious problems inherent in the majority’s conclusion that it retains statutory jurisdiction over this appeal pur suant to 28 U.S.C. § 1291, without regard to § 3742. First, the majority’s assertion that § 1291 continu es to authorize sentencing appeals in the face of § 3742 is highly suspect in light of the Supreme Court’s decision in United States v. Ruiz , 536 U.S. 622, 627-28 (2002). In Ruiz , the Court addressed the validity of a plea agreement in which the defendant waived the right-16-

to receive from the prosecutor exculpatory impeachm ent material and information relating to affirmative defenses the defendant migh t raise at trial. Id. at 628, 633. Before addressing the merits of the defendant’s contention, the Court noted “a question of statutory jurisdiction potentially bloc ks our consideration of the Ninth Circuit’s constitutional holding.” Id. at 626. After identifying § 3742 as the operative statutory basis for sentencing appeals, the Court noted that it only allowed sentencing appeals in four specific situati ons. Id. at 627. The Court further noted that only one of the specified catego ries was potentially applicable in the case: the defendant may file a notice of app eal if the sentence was imposed in violation of law. Id. According to the Court, Two quite different theories might support appellat e jurisdiction pursuant to that provision. First, as the Court of Appeals recognized, if the District Court’s sentencing decision rested on a mistaken belief that it lacked the legal power to grant a departure , the quoted provision would apply. 241 F.3d, at 1162, n.2. Ou r reading of the record, however, convinces us that the District Jud ge correctly understood that he had such discretion but decided not to exercise it. We therefore reject that basis for finding appellat e jurisdiction. Second, if respondent’s constitutional claim . . . were sound, her sentence would have been “imposed in violation of l aw.” Thus, if she had prevailed on the merits, her victory would also have confirmed the jurisdiction of the Court of Appeals. Although we ultimately conclude that respondent’s s entence was not “imposed in violation of law” and therefore that § 3742(a)(1) does not authorize an appeal in a case of this kind , it is familiar law that a federal court always has jurisdiction to det ermine its own jurisdiction. [ See United States v. Mine Workers , 330 U.S. 258, 291 (1947)]. In order to make that determination, it w as necessary for the Ninth Circuit to address the merits. We therefore hold that appellate jurisdiction was proper.5 This is not to say, however, that § 3742 has repeal ed § 1291 by

implication. As noted in the majority opinion, “‘A n implied repeal will only be found where provisions in two statutes are in irrec oncilable conflict, or where the latter act covers the whole subject of the earlier one and is clearly intended as a substitute.’” Majority Op. at 11 (quoting Branch v. Smith , 123 S. Ct. 1429, 1441 (2003) (citations and quotations omitted)). Sectio n 3742 is directed specifically to sentencing appeals and authorizes a level of sen tencing review never previously available prior to the passage of the Se ntencing Reform Act; section 1291 applies to civil appeals and to many types of appeals in criminal cases not involving sentencing. In these circumstances, the specific provision authorizing sentencing appeals controls over the general provis ion authorizing appeals from final orders in criminal and civil cases. Edmond v. United States , 520 U.S. 651, 657 (1997). -17- Ruiz , 536 U.S. at 627-28. It would be odd, indeed, forthe Supreme Court to engage in this analysis if § 1291 provided the juri sdictional hook necessary for the federal appellate courts to take up sentencing appeals. Hence, Ruizprovides strong support for the notion that § 3742, the more specific jurisdictional statute, has supplanted § 1291, the general jurisdictional s tatute, in the arena of sentencing appeals

. See Edmond v. United States , 520 U.S. 651, 657 (1997). 5 The majority attempts to sidestep Ruizby labeling the Court’s jurisdictional discussion “dicta.” Majority Op. at 9-10 n.4. In contrast to the majority’s assertion, however, the Court specifically noted th at it was necessary to undertake the jurisdictional analysis before it could reach t he merits of the appeal. Ruiz , 536 U.S. at 626 (“[W]e note that a question of stat utory jurisdiction potentially blocks our consideration of the Ninth Circuit’s con stitutional holding.”). The Court then specifically concluded that because the Ninth Circuit had properly-18-

reached the merits of the sentencing appeal, jurisd iction was proper in the Supreme Court as well. Id. at 628 (“In order to make [its own jurisdictional determination], it was necessary for the Ninth Circ uit to address the merits. We therefore hold that appellate jurisdiction was prop er.”). This required jurisdictional analysis is certainly not dicta. See Arizonans for Official English v.
Arizona , 520 U.S. 43, 73 (1997) (“[E]very federal appellat e court has a special obligation to satisfy itself not only of its own ju risdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it. And if the record discloses that the l ower court was without jurisdiction this court will notice the defect, alt hough the parties make no contention concerning it.” (quotation and citations omitted) (alterations in original)). Even assuming that § 1291 continues to operate as asource of statutory jurisdiction over sentencing appeals after the pass age of § 3742, this conclusion provides the majority no traction. It is certainly true that prior to the enactment of 18 U.S.C. § 3742, sentencing appeals could be p ursued under 28 U.S.C. § 1291. The scope of that review was, however, excee dingly narrow. See Dorszynski v. United States , 418 U.S. 424, 431 (1974) (“[O]nce it is determine d that a sentence is within the limitations set forth in the statute under which it was imposed, appellate review is at an end.”). The maj ority nevertheless asserts that-19-

review under § 1291 “include[s] an abuse of discret ion review over sentencing errors.” Majority Op. at 10. That statement is tr ue only in the grossest sense. Courts, including this court, have uniformly held t hat, pursuant to § 1291, an appellate court is not entitled to vacate or modify a sentence unless the district court imposed a sentence above the statutory maximu m, relied on materially incorrect information in arriving at a sentencing d ecision, or refused to exercise any discretion at all. United States v. Hack, 782 F.2d 862, 870 (10th Cir. 1986); see also, e.g., United States v. Ready , 82 F.3d 551, 555 (2d Cir. 1996) (“The right to appeal a criminal conviction and sentence is statutory. Prior to the passage of the Sentencing Reform Act of 1984 (the ‘1984 Act’), . . . criminal appeals were taken pursuant to 28 U.S.C. § 1291. . . . The righ t to appeal a sentence under § 1291 was limited to sentences that were imposed abo ve statutory limits, that were the result of material misinformation, or that were based on a constitutionally impermissible factor.”); United States v. Abdul-Hamid, 966 F.2d 1228, 1231 (7th Cir. 1992) (“Appellate review of sentences under pr e-SRA law was extremely narrow: A sentence which is within the limits estab lished by statute under which it is imposed will not be vacated upon review unles s the sentencing judge relied upon improper considerations or unreliable informat ion in exercising his discretion or failed to exercise any discretion at all in imposing the sentence.” (quotation omitted)). In Vasquez v. Cooper , 862 F.2d 250, 255 & n.4 (10th Cir.-20-

1988), this court specifically noted the exceedingl y narrow nature of sentencing review under § 1291 and indicated that the narrowne ss of review was “particularly true regarding substantive review of a trial court’s sentencing decision.” Unless a defendant is asserting that the district c ourt handed down a sentence outside the statutory limits, relied on materially incorrect information in arriving at a sentence, or relied on an impermissib le criterion, no relief under § 1291 is available. This leaves the court no room u nder § 1291 to correct the kind of Sentencing Guidelines errors that are likely to be raised in sentencing appeals after the passage of the Sentencing Reform Act. On ly under § 3742 is such review available. Otherwise, there would have been no need for Congress to enact § 3742. In sum, in attempting to avoid the difficult questi on of whether § 3742 provides jurisdiction to review a sentence when the defendant has waived appellate review, the majority has improperly minim ized as dicta statements in
Ruizwhich could certainly be read to indicate that § 3 742 is the exclusive statutory basis for sentencing appeals and disregar ded an equally difficult question concerning the severely limited scope of r eview available under § 1291 in a situation like that present in this case.-21-

B. Hahn’s Appeal Waiver is Valid and the Matter He Seeks to Appeal is Within the Scope of the Waiver This dissent’s conclusion that a valid appeal waive r deprives this court of subject matter jurisdiction to adjudicate all matte rs within the scope of the waiver is a beginning point rather than an ending point. As set out in Rubio , this court always has jurisdiction to determine its own jurisd iction. 231 F.3d at 711. In the context of an appeal waiver, as well as settlement agreements generally, the jurisdictional inquiry subsumes two questions. Fir st, is the appeal waiver valid?
See 13A Wright & Miller § 3533.2, at 235-36 (“[M]ootne ss of course should not result from an agreement that ought to be set aside .”). Second, is the matter which the appellant seeks to raise on appeal within the scope of the appeal waiver? Id

§ 3533.2, at 234 (“A partial settlement moots the issues involved in the settlement, but not those that the parties did not intend to settle.”). See generally Elliott , 264 F.3d at 1174-75 (undertaking this two-prongedanalysis and concluding both that the appeal waiver was valid an d that the matter defendant sought to appeal fell “squarely within the language of the waiver provision”). The appropriate course is to subject Hahn’s appeal to this analysis rather than to apply the enforcement analysis adopted by the major ity. 1. Validity of Hahn’s Appeal Waiver Hahn entered into a broad waiver of his appellate r ights, giving up the right to appeal any sentence “within the maximum provided in the statutes of6 In addition to holding that an appeal waiver is notvalid unless the

defendant’s acceptance of the waiver is knowing andvoluntary, this court indicated in Elliottthe following: [A] defendant who waives his right to appeal does n ot subject himself to being sentenced entirely at the whim of the district court. Appellate waivers are subject to certain exceptions , including where the district court relied on an impermissible facto r such as race, where ineffective assistance of counsel in connecti on with the negotiation of the waiver renders the waiver invali d, where the sentence exceeds the statutory maximum, or where th e waiver is otherwise unlawful. 264 F.3d at 1173 (quotation and citation omitted). Of course, it is beyond question that any appeal waiver which explicitlyempowered the district court to utilize an impermissible criterion at sentencing, s uch as race, religion, or sex; to impose a sentence in excess of the statutory maximu m; or precluded a defendant from asserting that the plea agreement was entered into without effective assistance of counsel, would be facially invalid. Id. Because, however, Hahn has not challenged the validity of his appeal waiver on any of these grounds, this court need not further delineate the parameters of these exceptions to the general rule that “[a] defendant’s knowing and voluntary wa iver of the statutory right to appeal his sentence is generally enforceable.” Id.

7See supran.4 (discussing evolving nature of Hahn’s argument s on appeal). -22- conviction.” Of course, such a waiver is valid and enforceable only if Hahn entered into it knowingly and voluntarily. 6 Elliott , 264 F.3d at 1173; Rubio , 231 F.3d at 712. Although his briefing before this cou rt is far from clear, 7Hahn appears to argue in his en banc supplemental brief that his appeal waiver is invalid because he did not enter it knowingly and i ntelligently. Both amicus
curiae National Association of Criminal Defense Lawyers ( “NACDL”) and Hahn assert that an appeal waiver can never be knowinglyentered because the defendant cannot possibly know in advance what erro rs a district court might8 Hahn’s challenge to the validity of his appeal waiv er is limited to the

narrow assertion that all such waivers are invalid as a matter of law because of their prospective nature. He does not challenge th e validity of his particular appeal waiver on the basis that it was not, in fact , knowingly and voluntarily entered. Accordingly, it is unnecessary to conside r whether such a claim can be raised on direct appeal or, instead, whether it mus t be raised in a 28 U.S.C. § 2255 proceeding after the defendant has developed t he factual basis for such a claim. -23- make in the process of arriving at an appropriate s entence. For the reasons set out in the majority opinion, Hahn is incorrect in asserting that appeal waivers are inherently unknowing and involuntary. See Majority Op. at 21-23. Because Hahn has not offered any alternative reason to question the validity of his appeal waiver, this court should proceed to the question w hether the particular issue Hahn seeks to appeal is within the scope of waiver. 8 2. Scope of Hahn’s Waiver This court construes “a defendant’s plea agreement according to contract principles and what the defendant reasonably unders tood when he entered his plea.” United States v. Chavez-Salais , 337 F.3d 1170, 1172 (10th Cir. 2003) (quotation omitted). “Like most waivers, a defenda nt’s waiver of his right to appeal . . . his sentence is to be construed narrow ly.” Id. at 1173. Furthermore, as with the interpretation of any contract, this co urt also applies the maxim that the agreement should be construed against its draft er, in this case the government. United States v. Brye , 146 F.3d 1207, 1210 (10th Cir. 1998). While the9 The majority’s placement of the scope analysis in i ts three-prong

enforcement analysis does, however, appear flawed. Resolution of whether an issue sought to be appealed is within the scope of an appeal waiver seems wholly unrelated to the validity, and hence enforceability , of an appeal waiver. Furthermore, the considerations identified by the m ajority in the miscarriage-ofjustice prong of its “contract analysis tempered bypublic policy” are more appropriately and circumspectly considered as part of validity and scope components of an analysis of whether this court has jurisdiction over the merits of Hahn’s sentencing appeal. The scope analysis set o ut in this dissent focuses exclusively on the parties’ intent in entering into an appeal waiver, leaving this court little opportunity to rewrite a plea agreemen t to the benefit of a defendant who has waived his appellate rights. Under the mis carriage-of-justice prong of the majority’s appellate waiver enforcement analysi s, this court is empowered to relieve the defendant of his obligations under a pl ea agreement simply because the court feels that the consequences of a sentenci ng error on the part of the district court are too severe. The unfortunate con sequence of the majority’s approach is two-fold. First, it encourages defendants to appeal in cases in which they have executed an appeal waiver, hoping that th is court will exercise its discretion to correct what the defendant inevitably views as an egregious sentencing error. Second, it discourages the government from entering into plea agreements containing appeal waivers because there is no guarantee that it will actually receive the benefit of the bargain it stru ck. The majority’s utilization of a discretionary approach to the enforcement of appe al waivers and the adoption of a miscarriage-of-justice exception to the enforceme nt of waivers will ultimately discourage the use of appeal waivers, a resource th at benefits defendants, the government, and society at large. See United States v. Elliott , 264 F.3d 1171, 1174 (10th Cir. 2001). -24- majority’s resolution that Hahn’s sentencing appeal is within the scope of the waiver is correct, a more extensive analysis is nec essary as part of the jurisdictional examination set out in this dissent. 9 It is appropriate to begin by emphasizing the requi rement that courts narrowly interpret plea agreements according to the reasonable understanding of the parties at the time the agreement was entered. This requirement seriously-25-

blunts the criticism that such waivers “could encou rage a lawless district court to impose sentences in violation of the guidelines.” United States v. Raynor , 989 F. Supp. 43, 45 (D.D.C. 1997) (quotation omitted). No defendant entering into an appeal waiver, even a broadly worded waiver like th e one before the court in the instant case, could be said to reasonably understan d that he is giving the district court license to utilize an impermissible criterion at sentencing, such as race, religion, or sex; to hand down a sentence in excess of the statutory maximum; or to refuse or fail to undertake a good faith effort to sentence the defendant pursuant to the Sentencing Guidelines and otherwise applicable law. Cf. United
States v. Yemitan , 70 F.3d 746, 748 (2d Cir. 1995) (“[A] sentence ta inted by racial bias could not be supported on contract principles, since neither party can be deemed to have accepted such a risk or be entitled to such a result as a benefit of the bargain.”); Melvin A. Eisenberg, Mistake in Contract Law , 91 Cal. L. Rev. 1573, 1628 (2003) (“[I]n contracting, as in other p arts of life, some things go without saying. And a central characteristic of th ings that go without saying is—they are not said.”). Although it is unnecessary in resolving this case to fully catalog the list of situations in the latter catego ry where it could be said that the district court refused or failed to undertake a goo d faith effort to sentence the defendant pursuant to the Sentencing Guidelines andotherwise applicable law, the following is a nonexclusive example: the partie s to an appeal waiver could not10 To be clear, the term “binding precedent” means Sup reme Court or Tenth

Circuit precedent that compels a particular outcome. This overlay on the scope doctrine will not swallow appellate waivers. Unles s it can be fairly said that a Supreme Court or Tenth Circuit decision dictates a particular result, a reasonable defendant entering into an appeal waiver has necess arily accepted the risk that the district court might decide the sentencing question , although anticipatory, erroneously and in a manner adverse to the defendant. In setting out the contours to this limitation on the scope of appeal waivers, the case law interpreting the provisions of the Antiterrorism and Effective DeathPenalty Act of 1996 provides a useful analogy. 28 U.S.C. § 2254(d)(1) provides that a federal court may not grant habeas relief with respect to any claim adjud icated on the merits in state court unless the state court adjudication of the cl aim “resulted in a decision that was contrary to . . . clearly established Federal l aw, as determined by the Supreme Court.” A state court’s decision is “contrary to” clearly established Supreme Court precedent only if the court “applies a rule t hat contradicts the governing law set forth in [Supreme Court] cases” or if the c ourt “confronts a set of facts that are materially indistinguishable from a decisi on of [the] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor , 529 U.S. 362, 405-406 (2000). This standard perf ectly captures the reasonable expectations of the parties to an appeal waiver. The parties reasonably proceed with an understanding th at the district court will faithfully apply the Sentencing Guidelines or otherwise applicable law in arriving at a defendant’s sentence and, in so doing, will no t reach a result that is “contrary to” binding Supreme Court or Tenth Circuit precedent. By the very nature of entering into the waiver, however, the defendant mu st also recognize that each sentencing proceeding is somewhat novel and typical ly requires the resolution of legal questions for which there is no binding prece dent from either the Supreme Court or this court. In those circumstances, the d efendant assumes the risk that the district court might very well reach an erroneo us conclusion. -26- reasonably anticipate that the district court would ignore binding Supreme Court or Tenth Circuit precedent identified by the defend ant in arriving at an appropriate sentence under the Guidelines or otherw ise applicable law. 10 Furthermore, as noted above, an appeal waiver that actually vested power in the district court to act in such a lawless fashion—thr ough the use of an-27-

impermissible factor in sentencing, the imposition of a sentence above the statutory maximum, or the refusal to undertake a go od faith effort to arrive at an appropriate sentence under the Guidelines or otherw ise applicable law—would be facially void. A reasonable defendant understands that arriving ata sentence under the Sentencing Guidelines and applicable statutes is a difficult technical endeavor subject to much dispute at the margins of binding p recedent. Both the government and the defendant realize that they may come out on the short end of such a resource-consuming process. The government is willing to make sentencing concessions in order to increase certainty and decrease the expenditure of resources. The defendant is willing to concede appellate rights in order to increase certainty and receive a reduced sentence. In so doing, both parties must reasonably understand that the district court mightwell make erroneous factual findings and, in the absence of binding precedent i dentified by the defendant, erroneous legal rulings. As noted above, within th ese parameters, this bargainedfor-exchange constitutes a valid waiver of a defend ant’s appellate rights. With these considerations in mind, it is appropriate to turn to the waiver in the instant

case. Hahn’s scope argument is particularly narrow. Hahnasserts that the district court made two types of decisions at sentencing in this case. First, the district-28-

court arrived at a Guidelines sentence of 292 month s’ imprisonment on the sexual exploitation charges. Hahn specifically concedes t hat any challenge to the district court’s calculations in arriving at this sentence f alls squarely within the scope of his appeal waiver. See Hahn Panel Reply Br. at 2. Second, the district c ourt concluded that it was obligated to impose the sente nce in the sexual exploitation case consecutively to the sentence previously impos ed in the marijuana and firearms case. Hahn emphatically asserts that this decision is beyond the scope of the appeal waiver. Id. at 1-3. Hahn’s argument that this second aspect o f the district court’s sentencing decision falls outside the scope of his appeal waiver is unconvincing. The text of Hahn’s appeal waiver is broad. Hahn “k nowingly waive[d] the right to appeal any sentence within the maximum pro vided in the statutes of conviction or the manner in the which that sentence was determined on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatever.” Although the scope of this broad waivermust be read in light of the reasonable expectations of the parties as elucidate d above, there is no suggestion in the record that the district court relied on an impermissible factor, imposed a sentence above the statutory maximum, or failed or refused to arrive at an appropriate sentence under the Sentencing Guideline s and otherwise applicable law. Instead, the question whether to impose the s entences in this case11 Hahn does note that at the sentencing hearing his c ounsel indicated that he

believed Hahn was entitled to appeal this question despite the appeal waiver. Nevertheless, these self-serving statements made af ter the entry of the appeal waiver and the district court’s acceptance of the g uilty plea cannot overcome the plain language of the appeal waiver. -29- consecutively to or concurrently with the marijuanaand firearms case—or, for that matter, whether the district court has discret ion to impose the sentence in this case concurrently with the sentence in the marijuan a and firearms case—was simply one more contested matter that the district court was required to resolve at Hahn’s sentencing hearing. There is absolutely nothing in the record to indicate that Hahn retained the right to appeal this particu lar sentencing question to the exclusion of all others. 11 Furthermore, as noted above in rejecting Hahn’s and NACDL’s assertions that appeal waivers can never be knowing and voluntary, it is not important that Hahn did not anticipate that this particular dispute would arise at sentencing. Instead, what is important is that Hahn understood the general parameters of the right he was surrendering

. Ruiz , 536 U.S. at 629-30. Hahn’s implicit invitation to define the scope of h is appeal waiver by reference to the sentencing disputes that he actually anticipate d must be rejected.

III. CONCLUSION The practical outcome of the majority opinion, i.e. , prudential dismissal of the case leaving the sentence imposed by the distri ct court intact, roughly-30-

corresponds to the practical outcome that would res ult from the analytical model advocated in this dissent. The differing approache s, however, are a consequence of principled differences in the consideration of t he very essence of this court’s constitutionally circumscribed power, Article III j urisdiction. Because Hahn’s appeal waiver is valid and because the matter he se eks to appeal is squarely within the scope of that waiver, this appeal does n ot present the court with a justiciable case or controversy. Accordingly, Hahn ’s sentencing appeal should be dismissed for lack of jurisdiction. Because the ma jority concludes otherwise, I respectfully dissent.