UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSHUA DEAN CUNNINGHAM, Defendant - Appellant. No. 17-1404 (D.C. No. 1:16-CR-00094-RM-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , LUCERO , and EID , Circuit Judges.

________________ _________________ Joshua Dean Cunningham pleaded guilty to possession with intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S. C. §§ 841(a)(1) and (b)(1)(A)(viii), and possession of a short-ba rreled shotgun in fu rtherance of a drug trafficking crime in viola tion of 18 U.S.C. § 924(c)(1 )(B)(i). Notwithstanding the appeal waiver in his plea agreement, he appealed. The United States has moved to enforce the waiver under United States v. Hahn , 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).

* This panel has determined unanimous ly 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 30, 2018
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND In the plea agreement, the government agreed to recommend a sentence between 20 years’—the statutory mini mum—and 30 years’ imprisonment. Mr. Cunningham reserved the right to request a downward variance from the advisory guideline range to a sentence of not less than 20 years, and the government reserved the right to ask fo r a sentence of up to 30 year s. Mr. Cunningham waived the right to appeal any matt er in connection with his prosecution, conviction, or sentence, unless (a) his se ntence exceeded the maximum statutory penalty, (b) his sentence exceeded “the advisory guideline range that applie s to a total offense level of 34 for [the methamphetamine count] plus a consecutive 120-month sentence applicable to [the firearm count],” or (c ) the government appeal ed the sentence. R., Vol. I at 700 (plea agreement). The agreement included an estimate of Mr. Cunningham’s advisory guideline range. The parties assumed that he was a career offender based on his two prior felony convictions for controlled substance o ffenses. Under the parties’ calculation, he was thus subject to a total advisory guideline range of 151 to 327 months on the methamphetamine count, depending on his criminal history category. 1 When added to his mandatory, consecutiv e sentence of 120 months for the firearm count, he would conceivably face a guideline range of 271 to 447 months’ tota l imprisonment.

1 Given his career offender status, his base offens e level for the methamphetamine count would be 37, reduced by three leve ls for timely acceptance of responsibility to 34. Although the partie s believed his crimin al history category would be VI, they did not definitively rely on that fact, and i ndicated it could be anywhere from I to VI.3 The probation department prepared a presentence investigation report (PSR) that essentially tracked the parties’ guideli ne calculations and used a criminal history category of VI. Approximate ly ten days before senten cing, however, it filed an addendum to the PSR, stating it had beco me aware of a recen t opinion from this
court, United States v. Madkins , 866 F.3d 1136 (10th Cir. 2017), that “may have implications to this case.” R., Vol. II at 165. In Madkins , this court determined that the defendant’s prior Kansas st ate offenses for possession w ith intent to sell cocaine and marijuana did not qualify as controlled s ubstance offenses with in the meaning of the guidelines, and therefore could not be used as predicate o ffenses to support a career-offender enhancement. Madkins , 866 F.3d at 1144, 1148. At sentencing, the di strict court extended Madkins to Mr. Cunningham’s prior Colorado felony drug convictions , and concluded that he wa s not a career offender. It therefore adopted a much lower figure fo r his guideline range than the parties had anticipated. The district court re calculated his guideline range on the methamphetamine offense at 121 to 151 mont hs. The guideline range for the firearm change remained the same. This resulted in a total advisory guideline range of 241 to 271 months. The district court asked the parties what sentence they would request. Mr. Cunningham’s counsel asked for a conti nuance so that the parties could confer about the effect of the modified guideline co mputation. He expressed doubt that the government could file, in good faith, a moti on for an upward variance from the top of the new guideline range. The district court denied the continuan ce, reasoning that the4 probation department had alerted the parties to Madkins and that the government had reserved its right to seek a sentence up to 30 years’ imprisonment and had not foresworn an upward variance to achieve that result. Mr. Cunningham’s counsel then argued for a downward variance to reach the minimum statutory sentence of 20 years. The government requested an upward variance, to 30 years. The district court, after stating it had cons idered the sentencing factors specified in 18 U.S.C. § 3553(a), varied upward by 15 percent and sentenced Mr. Cunningham to a term of 151 mont hs on the methamphetamine count and a consecutive 161 months on the firearm count, resulting in a total sentence of 312 months. DISCUSSION Under Hahn , we consider “(1) whether the di sputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; a nd (3) whether enforcing the waiver would result in a miscarriag e of justice.” 359 F.3d at 1325. The government argues all of these criteria are met: (1) Mr. Cunningham’s sentence ne ither exceeded the statutory maximum nor the guideline range specif ied in the plea agreement, and the government did not appeal; (2) the reco rd affirmatively shows a knowing and voluntary waiver; and (3) there is no ev idence of a miscarri age of justice. In his response, Mr. Cunningham pres ents an argument based on the second and third Hahn factors. He contends that his wa iver of the right to appeal his sentence was neither knowing nor voluntary because it was based on the parties’5 mutual mistake that he qualifie d as a career offender. He also argues that by denying him a continuance at sentencing, the district court committed a misca rriage of justice. Knowing and Voluntary Waiver. Mr. Cunningham emphasizes that he does not seek to void his entire plea agreem ent based on a mutual mistake—only the appeal waiver, so that he may appeal the district court’s upward variance. See Aplt. Resp. at 29. This being the case, we will consider only whether the appeal waiver itself was knowing and vol untary in light of the al leged mutual mistake. See United States v. Rollings , 751 F.3d 1183, 1190 n.5 (10th Cir. 2014). Mr. Cunningham cites the three- part test we identified in United States v. Frownfelter , 626 F.3d 549 (10th Cir. 2010), for re scission of a plea agreement on the basis of mutual mistake. Under this test: First, the mistake must relate to a basic assumption on which the contract was made. Second, the party seeking a voidance must show that the mistake has a material effect on the agreed ex change of performances. Third, the mistake must not be one as to which the party seeking relief bears the risk. Id. at 555 (internal quotation marks omitted). Assuming the Frownfelter test applies here, the alle ged mistake fails its first element. Although the partie s set a benchmark for an app eal based on a sentence that exceeded “the advisory guideline range that applies to a total o ffense level of 34 for [the methamphetamine count] plus a consecutive 120-mont h sentence applicable to [the firearm count],” R., Vol. I at 700, they did not make a basic assumption that the district court would only sentence Mr. Cunningham in accord ance with their estimated offense level, or that it would not vary upwardly from the advisory6 guideline range. To the contrary, they sp ecifically acknowledged that “the Court must make its own determination of the gu ideline range,” that it was not “bound by the position of any party,” and that it could “impose [a] reasonable sentence which . . . may be less than that called fo r by the advisory guidelines (in length or form), within the advisory guideline range, or above the advisory guideline range.” Id. at 709. The district court’s use of a different methodolo gy than the parties anticipated to arrive at its guideline dete rmination did not violate a basic assumption on which the appeal waiver was made. The alleged mistake also fa ils the second element of the test. To prevail on that element, Mr. Cunningham “must show th at the resulting imbalance in the agreed exchange is so severe that he [cannot] fairly be required to carry it out.” Frownfelter , 626 F.3d at 556 (internal quotation marks om itted). Mr. Cunning ham might wish to see the exception based on an offense level of 34 ratchete d downward to apply to an offense level of 29. But given the parties’ acknowledgement of the district court’s sentencing discretion, such a modification is not required to fairly hold him to the terms of his agreement. The district c ourt’s sentence did not trigger any of the exceptions the parties specifica lly agreed to in connecti on with the appeal waiver, and the appeal waiver is not voidabl e in the interest of fairness. Miscarriage of Justice. Mr. Cunningham’s miscarri age of justice argument also lacks me rit. In Hahn , we identified four circum stances that fall under the general rubric of mis carriage of justice. See Hahn , 359 F.3d at 1327. The only such factor that arguably applies here is “where the waiver is otherwise unlawful.” Id.7 But this factor “looks to whether the waiver is otherwise unlawful, not to whether another aspect of the proceeding may have involved legal error.” United States v. Polly , 630 F.3d 991, 1001-02 (10t h Cir. 2011) (internal quot ation marks and citation omitted). To the extent Mr. Cunningham ar gues that the district court committed a miscarriage of justice by failing to gran t a continuance to address its revised guideline calculation, these circum stances do not fall within this Hahn factor. CONCLUSION The motion to enforce is granted, and this matter is dismissed.

Entered for the Court Per Curiam