UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GEGHAM AVETISYAN, Defendant - Appellant. No. 19-3238 (D.C. No. 2:18-CR-20093-JAR-1) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , EID , and CARSON , Circuit Judges.

________________ _________________ This matter is before the court on th e government’s motion to enforce the appeal waiver in Gegham Avetisyan’s plea agreement. Exercising jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal. As an initial matter, we deny Avetis yan’s motion to strike the motion to enforce as premature. Although the governme nt filed its motion before the district court clerk notified us either that the record was comple te or that the clerk was transmitting the record, see 10th Cir. R. 27.3(A)(3)(b) (providing that a motion to

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 6, 2020 Christopher M. Wolpert Clerk of Court2 enforce “must be filed within 20 days afte r” such notification), the clerk has since provided the required notification a nd the record has been filed. Avetisyan pleaded guilty to one count of wire fraud, in viol ation of 18 U.S.C. § 1343. In the written plea agreement, he confirmed his understanding that the district court would “find . . . the facts used to determ ine the offense level” and determine the applicable guidelin es range. Mot. to Enforce, Attach. C at 2. He also acknowledged that he understood the cour t would determine the sentence to be imposed and that the government had “not made any promise or representation as to what sentence he [would] receive.” Id . at 4. The agreement included a broad waiver of appellate rights, including the “right to appeal . . . any matter in connection with . . . the sentence [] imposed,” unles s the government appeal ed the sentence or the district court “depart[ed] upwards from the sentencing Guideline range [it] determine[d] to be applicable.” Id . at 6-7. At the change of plea hearing, Avetisyan assured the court that he understood both that the court had sole discretion to determine the applicable gui delines range and sentence a nd that he was waiving his right to appeal the sentence imposed. The district court accepted Avetisyan’ s guilty plea as know ing and voluntary, determined that the applicab le guidelines range was 21 to 27 months, and sentenced him substantially below that range to 15 m onths’ imprisonment. Despite his appeal waiver, Avetisyan file d this appeal. In ruling on a motion to enforce, we cons ider: “(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant3 knowingly and voluntarily waived his appell ate rights; and (3) whether enforcing the waiver would result in a mi scarriage of justice.” United States v. Hahn , 359 F.3d 1315, 1325 (10th Ci r. 2004) (en banc) (per curiam). Avetisyan filed a pro se response 1 to the motion to enforce, arguing that he should be permitted to appeal the reasonableness of his se ntence because (1) it is enough that he is willing to pay restitution; (2) a prison sentence is a hardship for his family; and (3) the district court improperl y added two levels to the base offense level pursuant to U.S. Sentencing Gu idelines Manual § 2B1.1(b)(11)(C)(i) (U.S. Sentencing Comm’n 2018), because th e fake driver’s license he used in committing the offense incl uded identifiers from multip le people so was not an identification of one specific individual, see id . § 2B1.1 cmt. n.1 (incorporating “means of identification” definition used in 18 U.S.C. § 1028(d)(7), which requires that the “means of identif ication” identify “a specif ic individual”), and the government cannot prove that he knew the identifiers belonged to real people. Construing his response liberally, see Haines v. Kerner , 404 U.S. 519, 520 (1972) (per curiam), we in terpret his arguments as clai ming that his sentence falls outside the scope of the waiver and that en forcing the waiver would be a miscarriage of justice. 2 We reject both arguments.

1 At Avetisyan’s request, his counsel m oved to withdraw so that he could represent himself on appeal, and we granted that motion. 2 Nothing in his opposition suggests th at Avetisyan is cl aiming he did not knowingly and voluntarily waive his appellat e rights. We thus do not address the second Hahn factor. See United States v. Porter , 405 F.3d 1136, 1143 (10th Cir.4 Avetisyan’s sentence does not fall within either of the exceptions that would permit an appeal: it does not exceed the applicable guidelines range and the government did not appeal it. Although he challenges the basi s for the district court’s determination of the guidelines range, that issue fa lls within the scope of the waiver, which bars an appeal of “any matter” related to the determination of the sentence. Mot. to Enforce, Attach. C at 6. Accordingly, his appeal falls squarely within the scope of hi s appellate waiver. We also reject Avetisyan’ s argument that enforcing th e waiver will result in a miscarriage of justice. A miscarriage of ju stice occurs where (1) “the district court relied on an impermissible fa ctor such as race”; (2) “ine ffective assistance of counsel in connection with the negotiation of the waiv er renders the waiver invalid”; (3) “the sentence exceeds the statutory maximum”; or (4) “the waiv er is otherwise unlawful.” Hahn , 359 F.3d at 1327 (internal quotation mark s and citations omitted). To show that an appeal waiver is “otherwise unlawful,” the defe ndant must prove that the alleged error “seriously affe ct[ed] the fairness, integrit y, or public reputation of judicial proceedings.” Id . at 1329 (internal quotation ma rks omitted). “The burden rests with the defendant to de monstrate that the appeal waiv er results in a miscarriage of justice.” United States v. Anderson , 374 F.3d 955, 959 (10th Cir. 2004). Avetisyan’s arguments challenge the proprie ty of his sentence, not the legality of his appeal waiver. Becau se the “otherwise unlawful” exception is focused on the

2005) (holding that this court need not address a Hahn factor that the defendant does not contest).5 fairness of the proceedings, not the result of the proc eedings, a defendant may not rely on it to avoid enforcement of an app eal waiver based on a lleged errors in the calculation of his sentence. United States v. Smith , 500 F.3d 1206, 1212-13 (10th Cir. 2007). CONCLUSION For the reasons discussed above, we de ny Avetisyan’s motion to strike the government’s motion to enforce his appeal waiver, grant the moti on to enforce, and dismiss the appeal.

Entered for the Court Per Curiam