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

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfa vors 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 Defend ant Dawn Marie Nelson’s waiver of her appellate rights—made before the Supr eme 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 asentence 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 a greed 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 co mmitting or facilitating distribution of methamphetamine, in violation of 21 U.S.C. § 843(b). The plea agreement entered into by Defendant and the governm ent on February 9, 2004
states: [D]efendant in exchange for the promises and conces sions 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 l imited to any rulings on pretrial suppression motions or a ny 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 sent ence 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 do es not waive the right to appeal an upward departure from the1 Defendant’s citation of Blakelyis 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 t o 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 h eld by the Tenth Circuit or Supreme Court to have retroact ive effect. Later on February 9, Defendant pled guilty to the s uperseding information pursuant to this plea agreement. In sentencing Defendant in August 2004—some two mon ths 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 unc onstitutional. Defendant timely appealed, asserting that the district court improperly enhanced her sentence on the basis of drug amounts that were not ascertai ned 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.2 Hahnstates that, in cases in which a defendant files anotice of appeal

after waiving his or her appellate rights, the gove rnment 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 c oncomitant 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 i n a plea agreement, we determine whether (1) the appeal falls within the s cope 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 wai ver 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 wa s knowing and voluntary, and enforcement of the waiver would not result in a mis carriage of justice. Defendant fails to counter any of these arguments. Defendanthad an opportunity to make such assertions in a reply brief, but defense couns el 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. 22 (...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 di d not file such a motion. The approach taken by the government in this case i s not consistent with the procedure laid out in Hahn , and we urge the government to employ the proper procedure in the future. Nonetheless, the governme nt’s erroneous approach does not preclude us from enforcing Defendant’s appellat e 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 bri ef. The fact that Defendant did not actually file such a reply brief does not alterthis 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 be fore 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 enforcemen t of the appellate rights waiver, we would find that waiver enforceabl e under the three-part Hahn test. Moreover, even if we were to refrain from en forcing 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 s entencing 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