UNITED STATES CO URT 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 mo nths in prison, at the low end of the guidelines range of 188 to 23 5 months. Under the term s 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 with in the guidelines range determined to be

* This panel has determined that oral ar gument 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 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 en force the appeal waiver.
See United States v. Hahn , 359 F.3d 1315, 1328 (10t h 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 with in the scope of the waiver of appellate rights; (2) whether the defenda nt knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would resu lt 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 challenge d by defendant). Mr. Tucker asserts that th ere was a miscarriage of ju stice because his appeal waiver is “otherwise unlawful.” Hahn , 359 F.3d at 1327 (internal quotation marks omitted) (setting out four po ssibilities for showing miscar riage of justice). For a waiver to be “otherwise unl awful,” “the error must seri ously 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) (interna l quotation marks omitted). Mr. Tucker argues that his sentence affects the fairne ss, integrity, or public re putation of the judicial proceedings, because the dist rict court erred in determ ining that he was a career offender and then incorrectly considered a guidelines se ntencing range of 188 to 235- 3 - months for a career offender when the corre ct 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 ca reer offender. Thus, he ma intains that his sentence was illegal and imposing an illegal se ntence is plain error. When, as is the case here, a plea agreem ent contains an app eal waiver, “[o]ur inquiry is not whether the sentence is unlaw ful, but whether the waiver itself is unlawful because of some procedural erro r 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 proceed ing 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 [h is] sentence should invalidate [his] appellate waiv er illustrates what Hahn called ‘the logical failing[] of focusing on the result of the proceedi ng, rather than on the right relinquished, in analyzing whether an appeal waiv er is [valid].’” Id . (quoting Hahn , 359 F.3d at 1326 n.12). Because Mr. Tucker makes no argument that th e appeal waiver itself is unlawful, we need not and will not consider wh ether 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