UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DONALD BRIAN WINBERG, Defendant - Appellant. No. 15-1310 (D.C. No. 1:14-CR -00160-PAB-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , EBEL , and McHUGH , Circuit Judges.

________________ _________________

Donald Brian Winberg pleaded guilty to two counts of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. As part of the plea agreement, Mr. Winberg agreed to forfeit the proceed s of the offenses pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c). Mr. Winberg’s plea agreement also contained a waiver of his right to appeal . Despite his appeal waiver, Mr. Winberg has filed a notice of appeal seeking to challenge the dist rict court’s final order of

* This panel has determined unanim ously that oral argument would not materially assist in the dete rmination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cas e is therefore ordered submitt ed without oral argument. This order and judgment is not binding pre cedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It ma y be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 5, 2016
Elisabeth A. Shumaker Clerk of Court2 forfeiture. The government has moved to enforce the appeal waiver under United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) (en ba nc) (per curiam). We grant the government’s motion and dismiss this appeal. Mr. Winberg stated in his plea agreem ent that he “knowingly and voluntarily waives the right to appeal any matter in connection with [his] prosecution, conviction, or sentence” subject to certain conditions that Mr. Winberg concedes are not applicable. R. Vol. I, at 152-53; see Aplt. Resp. to Mot. to Enforce at 2. The district court sentenced Mr. Winberg to a total of 87 months of imprisonment, which was below the statutory maximum of 20 y ears’ imprisonment for conspiracy to commit wire fraud, see 18 U.S.C. §§ 1343, 13 49, and within the advisory guideline range of 87 to 108 months’ imprisonment. Mr. Winberg also stated in his plea agreement that he agreed to forfeit to the government any and all asse ts and property subject to forfeiture under 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2641(c) , including, but not limited to, (1) $153,910.20 in currency seized from him; and (2) a money judgment in the amount of $1,541,689.90. See R. Vol. I, at 153-54. Additi onally, he agreed to waive any claim to forfeit a 40 foot Sea Ray Cabin Mo torboat, and consented to its disposal by whatever means the governme nt deemed reasonable. See id . at 155. Before sentencing, the district court entered a prelim inary order of forfeiture, and, thereafter, a final order of forfeiture entitling the governme nt to Mr. Winberg’s interest in the $153,910.20 in currency, and the $1,541,689 .90 money judgment. At sentencing, the district court orally announ ced that Mr. Winberg’s senten ce “does include forfeiture.”3 Id . Vol. III, at 107. And the forfeiture of the currency and money judgment was included in the judgment and conviction “as re flected in the Plea Agreement . . . and Final Order of Forfeiture.” Id . Vol. I, at 242. In evaluating a motion to enforce an app eal waiver, we consider: “(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntar ily waived his appellate rights; and (3) whether enforcing the waiver would re sult in a miscarriag e of justice.” Hahn , 359 F.3d at 1325. In response to the gove rnment’s motion, Mr. Winberg seems to concede that his challenge to the forfeiture order is within the scope of his appellate waiver. He admits, for example, that he “agreed to waive appeal of his sentence and that forfeiture is an elem ent of the sentence imposed following conviction” and, further, that the parties “ likely understood [the plea ag reement] to preclude [him] from challenging the forfeitures on appeal.” Aplt. Resp. to Mot. to Enforce at 4 (internal quotation marks and citations omitte d). He also does not dispute that he executed his waiver knowingly and voluntarily . We therefore need not address these issues. See United States v. Porter , 405 F.3d 1136, 1143 (10th Cir. 2005) (declining to consider uncontested issue) . Accordingly, we evalua te only Mr. Winberg’s claim that enforcing an appeal wa iver as to an illegal forf eiture order results in a miscarriage of justice. Enforcement of an appeal waiver results in a miscarriage of justice only “[1] where the district court reli ed on an impermissible factor such as ra ce, [2] where ineffective assistance of counsel in conn ection with the negotiation of the waiver4 renders the waiver invalid, [3 ] where the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise unlawful.” Hahn , 359 F.3d at 1327. “This list is exclusive: enforcement of an appellate wa iver does not result in a miscarriage of justice unless enforcement would result in one of the four situations enumerated above.” United States v. Polly , 630 F.3d 991, 1001 (10t h Cir. 2011) (internal quotation marks omitted). Mr. Winberg has the burden to demonstr ate that enforcemen t of his appeal waiver would result in a mi scarriage of justice. See United States v. Anderson , 374 F.3d 955, 959 (10th Cir. 2004). He contends that the amount of forfeiture ordered by the district court exceeds th e amount of proceeds of his offenses of conviction and, therefore, is in excess of the maximum penalty provided by 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c), wh ich entitle the governme nt to an amount of criminal forfeiture that represents the amount of criminal proceeds. See United States v. McGinty , 610 F.3d 1242, 1246 (10th Cir. 2010) . It is this exception of Hahn’ s miscarriage-of-justice prong—“sente nce exceeds the st atutory maximum”— on which Mr. Winberg therefore appears to rely, see Aplt. Resp. to Mo t. to Enforce at 4-5. He concludes that the final order of forfeiture is unlawful a nd his appeal waiver is inapplicable. It is well-established that forfei ture is part of the sentence. See Libretti v. United States , 516 U.S. 29, 38-39 (1995). Furt her, the amount of a criminal forfeiture is directly related to th e amount of the criminal proceeds. See 18 U.S.C. § 981(a)(1)(C) (providing that “[a]ny property, real or pe rsonal, which constitutes or5 is derived from proceeds traceable to a violation” of 18 U.S. C. §§ 1343, 1349 is subject to forfeiture to the government); McGinty , 610 F.3d at 1246 (recognizing that

an in personam judgment in favor of the government for the amount of money the defendant obtained as proceeds of the offens e is an appropriate form of criminal forfeiture). Mr. Winberg does not dispute th at the total amount of criminal proceeds of his offenses is $1,541,689. 90. He argues, however, that “[n]othing in the district court’s forfeiture orders, or elsewhere in the record,” reflect that the government’s collection of the “[currency] (forfeited de jure ) and the yacht (forfeited de facto ) constitute partial satisfacti on of the money judgment.” Aplt. Resp. to Mot. to Enforce at 3. Based on this premise, he concludes the final or der of forfeiture is illegal under 18 U.S.C. § 981 and 28 U.S.C. § 2461 because the amount of forfeiture exceeds the amount of proceeds from his offenses of conviction. As part of the plea agreem ent, Mr. Winberg expressly agreed to forfeit any and all assets to the government including the $153,910.20 in currency; the money judgment in the amount of $1,541,689.90; and hi s right, title, and inte rest in the boat. The plea agreement provided that the $1,541, 689.90 money judgment “represents the proceeds obtained from the defendants’ conspiraci es.” R. Vol. I, at 153. It further provided that “[a]ny assets forfeited, directly or as a substitute asset, shall be applied to the forfeiture money judgment.” Id . The record reflects that the presentence report likewise states the same — all assets forfeited shall be applied to the forfeiture judgment. Thus, despite Mr. Winberg’s clai m, the record demons trates the parties’6 intent that Mr. Winberg’s forfeited asse ts would be credited to the forfeiture judgment. The final order of forfeiture reflec ts the judgment of forfeiture to the government of Mr. Winberg’s interest in the $153,910.20 in currency and provides that the government “shall have full and lega l title to defendant’s interest in the forfeited currency and may dispose of it in acco rdance with law.” R. Vol. I, at 214. Additionally, it orders an in personam forfeiture judgment against Mr. Winberg for $1,541,689.90 as authorized by 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c). Further, the order of judgment provides that Mr. Winberg “shall forfeit [his] interest in the following property to the United States: $153,910. 20 in currency seized on February 5, 2015, and a money judgment in the amount of $1,541,689.90 as reflected in the Plea Agreement . . . a nd Final Order of Forfeiture.” Id . at 242. We conclude Mr. Winberg’s argument th at the final order of forfeiture is unlawful is without merit. The order does not exceed its authority under the forfeiture statutes at issue as it is not in excess of the maxi mum penalty provided by the forfeiture statutes. Furthe r, its silence regarding the forfeiture of the $153,910.20 in currency and forfeiture of Mr. Winberg’s ri ght, title, and interest in the boat as partial satisfaction of the $1,541,689.90 money judgment does not render the final order of forfeiture illegal. Accordingly, Mr. Winberg has not met his burden in demonstrating that enforcing the waiver woul d result in a miscarri age of justice.7 The government’s motion to enforce the waiver is granted and the appeal is dismissed.

Entered for the Court Per Curiam