*After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

July 6, 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAWN MARIE NELSON,

Defendant - Appellant.

No. 04-6279

(D.C. No. CR-03-006)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before EBEL, MCKAY and HENRY, Circuit Judges.

In this direct criminal appeal, we hold that Defendant Dawn Marie Nelson’s

waiver of her appellate rights—made before the Supreme Court issued its opinion

in Blakely v. Washington, 124 S. Ct. 2531 (2004)—bars our consideration of
- 2 -

Defendant’s claim that the district court imposed a sentence that violated Blakely. 

We therefore DISMISS the appeal.

I. Background

Defendant Dawn Marie Nelson and eight co-defendants were indicted for

drug and firearms offenses in early 2003. Nelson agreed to plead guilty to a

superseding information. This information charged her with (1) being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)-(2); and (2)

knowingly and intentionally using a telephone in committing or facilitating

distribution of methamphetamine, in violation of 21 U.S.C. § 843(b). The plea

agreement entered into by Defendant and the government on February 9, 2004

states:

[D]efendant in exchange for the promises and concessions made by

the United States in this plea agreement, knowingly and voluntarily

waives her right to:

a. Appeal or collaterally challenge her guilty plea and any

other aspect of her conviction, including but not limited

to any rulings on pretrial suppression motions or any

other pretrial dispositions of motions and issues;

b. Appeal, collaterally challenge, or move to modify under

18 U.S.C. § 3582(c)(2) or some other ground, her

sentence as imposed by the Court and the manner in

which the sentence is determined, provided the sentence

is within or below the applicable guideline range

determined by the Court to apply to this case. . . . 

c. It is provided that (i) defendant specifically does not

waive the right to appeal an upward departure from the
1Defendant’s citation of Blakely is sufficient to raise an argument under

United States v. Booker, 125 S. Ct. 738 (2005). See United States v. Clifton, 406

F.3d 1173, 1175 n.1 (10th Cir. 2005).

- 3 -

sentencing guideline range determined by the Court to

apply to this case, and (ii) her waiver of rights to appeal

and to bring collateral challenges shall not apply to

appeals or challenges based on changes in the law

reflected in Tenth Circuit or Supreme Court cases

decided after the date of this agreement that are held by

the Tenth Circuit or Supreme Court to have retroactive

effect.

Later on February 9, Defendant pled guilty to the superseding information

pursuant to this plea agreement.

In sentencing Defendant in August 2004—some two months after the

Supreme Court decided Blakely—the district court pronounced two alternative

sentences: one of 168 months’ imprisonment based on the application of the

sentencing guidelines, and an alternative sentence of 168 months’ imprisonment

based on the application of the relevant statutes, which was to be imposed in the

event that the sentencing guidelines were found unconstitutional. Defendant

timely appealed, asserting that the district court improperly enhanced her sentence

on the basis of drug amounts that were not ascertained by a jury, in violation of

Blakely.

1

 After Defendant filed her opening brief in this appeal, the government

filed a brief raising, inter alia, the issue of Defendant’s appellate rights waiver.
2Hahn states that, in cases in which a defendant files a notice of appeal

after waiving his or her appellate rights, the government should file a motion to

(continued...)

- 4 -

Defendant had an opportunity to file a reply brief addressing the government’s

arguments but failed to do so.

II. Analysis

“[W]e generally enforce plea agreements and their concomitant waivers of

appellate rights.” United States v. Hahn, 359 F.3d 1315, 1318 (10th Cir. 2004)

(en banc) (per curiam). In considering whether to dismiss appeals brought by

defendants who have waived their appellate rights in a plea agreement, we

determine whether (1) the appeal falls within the scope of the appellate waiver;

(2) the defendant’s waiver of his or her appellate rights was knowing and

voluntary; and (3) enforcement of the appellate waiver would result in a

miscarriage of justice. Id. at 1325.

In this case, the government argues that Defendant’s appeal falls within the

scope of her appellate rights waiver, the waiver was knowing and voluntary, and

enforcement of the waiver would not result in a miscarriage of justice. Defendant

fails to counter any of these arguments. Defendant had an opportunity to make

such assertions in a reply brief, but defense counsel did not even file such a brief. 

Accordingly, we must enforce Defendant’s appellate rights waiver and dismiss her

appeal. See Hahn, 359 F.3d at 1328-29.2
2

(...continued)

enforce the plea agreement before the parties brief the underlying merits of the

case. See 359 F.3d at 1328. In this case, the government did not file such a

motion. 

The approach taken by the government in this case is not consistent with

the procedure laid out in Hahn, and we urge the government to employ the proper

procedure in the future. Nonetheless, the government’s erroneous approach does

not preclude us from enforcing Defendant’s appellate rights waiver. Because

Defendant had an opportunity to file a reply brief addressing the government’s

waiver argument, Defendant has not been prejudiced by the fact that the

government raised the argument in its appellate brief. The fact that Defendant did

not actually file such a reply brief does not alter this conclusion. See generally

United States v. Garrett, 402 F.3d 1262, 1266 (10th Cir. 2005) (emphasizing the

substantive nature of the analysis that we apply before considering the appellate

arguments of a defendant who has waived his or her appellate rights, not the

procedure followed by the government in responding to the defendant’s filing of a

notice of appeal).

- 5 -

Even if Defendant had argued against the enforcement of the appellate

rights waiver, we would find that waiver enforceable under the three-part Hahn

test. Moreover, even if we were to refrain from enforcing Defendant’s appellate

rights waiver, we would deny Defendant relief. The district court’s determination

of drug quantity at sentencing constituted harmless error because the district court

imposed identical alternative sentences under the sentencing guidelines and the

relevant statutes. See United States v. Serrano-Dominguez, 406 F.3d 1221, 1223-

24 (10th Cir. 2005).
- 6 -

III. Conclusion

For the foregoing reasons, we DISMISS Defendant’s appeal.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge