UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JEREMY HARRIS, Defendant - Appellant. No. 15-3152 (D.C. No. 6:13-CR -10156-MLB-2) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , PHILLIPS , and MORITZ , Circuit Judges.

________________ _________________ After accepting a plea agreement c ontaining a broad appeal waiver, Jeremy Harris pleaded guilty to one count of conspiracy to distribute marijuana in violation of 21 U.S.C. §§ 84 1(a)(1) and 846. The dist rict court accepted his guilty plea, but it deferred deciding whether to accept the plea agreemen t until after it saw the presentence report. The c ourt informed the parties that if it sentenced Mr. Harris, “the parties may assume that [the court has] accepted the pl ea agreement.” R. at 108. Eventually the district c ourt sentenced Mr. Harris to 144 months’ imprisonment,

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### January 14, 2016 Elisabeth A. Shumaker Clerk of Court2 below the advisory guideline range of 2 10 to 260 months. At sentencing, however, the district court never mentioned the pl ea agreement. And despite the appeal waiver, it stated to Mr. Ha rris, “You can appeal if you wi sh. [Defense counsel] can advise you about whether an appeal will do yo u any good. But if you wish to appeal, he’ll file a notice of appeal for you.” Mot. to Enforce, Attach. B at 20. Mr. Harris filed a pro se notice of appeal. The government moved to enforce the appeal waiver under United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). In Hahn , we held that we would enforce appeal waivers as long as three conditions were met: (1) the matter on appeal “falls within the scope of the waiver”; (2) the defendant “knowingly and voluntarily waived his a ppellate rights”; and (3) enfo rcing the waiver will not “result in a miscarri age of justice.” Id. at 1325. Mr. Harris’s counsel res ponded that opposing the motion to enforce would be frivolous and moved to withdraw. See Anders v. California , 386 U.S. 738, 744 (1967). Upon fully exam ining the proceedings, as Anders requires, see id. , we identified at least one non-fri volous issue—whether the di strict court ever accepted the plea agreement—and denied counsel permission to w ithdraw until Mr. Harris was appointed new counsel. The response by Mr. Harris’ second c ounsel acknowledges the issue this court identified, but does not argue that the waiv er never came into effect because the district court did not accep t the plea agreement. Rath er, the response implicitly3 concedes that the court accepted the pl ea agreement and in stead focuses on a different issue: Here, Mr. Harris does not contend that his potential challenges to the sentence are beyond the purview of th e written appeal waiver, or that a manifest injustice will occur absent appe llate intervention. But the district court’s post-sentencing grant of the right to appeal, coupled with the Government’s failure to object, should render the appeal waiver unenforceable. Amend. Resp. at 5. Ther efore, we consider only wh ether the district court’s statement at sentencing inva lidated the waiver in the written plea agreement. See United States v. Porter , 405 F.3d 1136, 1143 (10th Cir. 2005) (holding that the court need not consider a Hahn factor that the defenda nt does not contest). Mr. Harris relies on United States v. Smith , 500 F.3d 1206, 1211 (10th Cir. 2007), in which the district court informed a defendant that she had a right to appeal, even though her plea agreemen t contained an appeal waiv er. This court concluded that “the court’s statement did not negate Ms. Smith’s prior wr itten waiver of her appellate rights.” Id. But we also “acknowledge[d] that such instructions may have the potential to render appellate waivers i nvalid under different circumstances, such as when the instructions are inconsistent with the defendant’s rights or when the district court’s statement has the serious potential to confuse the defendant.” Id. at 1212. Mr. Harris relies on th is exception, asserting that “[t]hose circumstances exist in this case” because “the district court’s broad grant of the right to appeal was inconsistent with the plea agreement’s appeal waiver” and “the court’s advice was potentially confusing . . . about the right to appeal.” Am end. Resp. at 8.4 Mr. Harris, however, ignores mo re apposite authority. In Hahn itself, this court noted that “statements ma de after the entry of the app eal waiver and the district court’s acceptance of the guilty plea ca nnot overcome the plai n language of the appeal waiver.” 359 F.3d at 1328 n.14. We relied on Hahn to reject an argument similar to Mr. Harris ’s assertions in United States v. Arevalo-Jimenez , 372 F.3d 1204, 1206 (10th Cir. 2004), where the district cour t erroneously stated at sentencing that the defendant could appeal the calculation of his criminal hi story. We held that the statement did not invalidate a broa d appeal waiver because it came after the court had already accepted the defendant’s plea. See id. at 1206-07. Although the district court later addresse d the plea agreement, we have held that absent exceptional circumstances, th e district court lacks authority to modify a plea agreement at senten cing. Because we find no such exceptional circumstances here, we hold th at the district court’s statements at sentencing did not modify th e broad language of the waiver. Id. at 1206 (citation and inte rnal quotation marks omitted). Similarly, Mr. Harris accepted his plea agreement, including the wa iver, well before his sentencing, so the district court’s statement at the end of sentencing could not have confused him about the scope of the waiver. Further, he has not shown any exceptional circumstances that would have allowed the district court to modify hi s plea agreement. As in Smith , Arevalo-Jimenez , and Hahn , notwithstanding the district court’s statement, the waiver is valid and enforceable. The motion to enforce is granted and this matter is dismissed.

Entered for the Court Per Curiam