UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

DONALD LEWAYNE TUCKER, 

 Defendant - Appellant. 

No. 14-6242 

(D.C. No. 5:14-CR-00045-C-1) 

(W.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before BRISCOE, Chief Judge, EBEL and PHILLIPS, Circuit Judges. 

 

 Donald LeWayne Tucker pleaded guilty to possession with intent to distribute 

twenty-eight or more grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). 

The district court sentenced him to 188 months in prison, at the low end of the 

guidelines range of 188 to 235 months. Under the terms of his plea agreement, 

Mr. Tucker waived his right to appeal any sentence, and the way in which it was 

determined, as long as the sentence was within the guidelines range determined to be 

 

* This panel has determined that oral argument would not materially assist the 

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The 

case is therefore ordered submitted without oral argument. This order and judgment 

is not binding precedent, except under the doctrines of law of the case, res judicata, 

and collateral estoppel. It may be cited, however, for its persuasive value consistent 

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 18, 2015

Elisabeth A. Shumaker 

Clerk of Court
- 2 - 

appropriate by the court. Nevertheless, Mr. Tucker filed a notice of appeal 

concerning his sentence. The government moves to enforce the appeal waiver. 

See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) 

(per curiam). 

 Under Hahn we consider three factors when deciding whether to enforce an 

appeal waiver: “(1) whether the disputed appeal falls within the scope of the waiver 

of appellate rights; (2) whether the defendant knowingly and voluntarily waived his 

appellate rights; and (3) whether enforcing the waiver would result in a miscarriage 

of justice.” Id. at 1325. Mr. Tucker focuses only on the miscarriage-of-justice 

factor. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) 

(recognizing that court need not address factors not challenged by defendant). 

Mr. Tucker asserts that there was a miscarriage of justice because his appeal 

waiver is “otherwise unlawful.” Hahn, 359 F.3d at 1327 (internal quotation marks 

omitted) (setting out four possibilities for showing miscarriage of justice). For a 

waiver to be “otherwise unlawful,” “the error must seriously affect the fairness, 

integrity or public reputation of judicial proceedings, as that test was employed in 

United States v. Olano, 507 U.S. 725, 732 . . . (1993).” Hahn, 359 F.3d at 1327 

(brackets omitted) (internal quotation marks omitted). Mr. Tucker argues that his 

sentence affects the fairness, integrity, or public reputation of the judicial 

proceedings, because the district court erred in determining that he was a career 

offender and then incorrectly considered a guidelines sentencing range of 188 to 235 
- 3 - 

months for a career offender when the correct range was 70 to 87 months. According 

to Mr. Tucker, his prior rape conviction did not qualify as a crime of violence and 

therefore he could not be a career offender. Thus, he maintains that his sentence was 

illegal and imposing an illegal sentence is plain error. 

 When, as is the case here, a plea agreement contains an appeal waiver, “[o]ur 

inquiry is not whether the sentence is unlawful, but whether the waiver itself is 

unlawful because of some procedural error or because no waiver is possible.” United 

States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir. 2007). We do not consider 

“whether another aspect of the proceeding may have involved legal error.” United 

States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007). Thus, Mr. Tucker’s “argument 

that alleged errors in the court’s determination of [his] sentence should invalidate 

[his] appellate waiver illustrates what Hahn called ‘the logical failing[] of focusing 

on the result of the proceeding, rather than on the right relinquished, in analyzing 

whether an appeal waiver is [valid].’” Id. (quoting Hahn, 359 F.3d at 1326 n.12). 

Because Mr. Tucker makes no argument that the appeal waiver itself is unlawful, we 

need not and will not consider whether there is plain error. 

 Accordingly, we grant the government’s motion to enforce the appeal waiver, 

and we dismiss the appeal. 

 Entered for the Court 

 Per Curiam