UNITED STATES CO URT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ARNELL STEWART, a/k/a “Show Off,” Defendant - Appellant. No. 14-1276 (D.C. No. 1:13-CR-00159-WJM-17) (D. Colo.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, LUCERO and HARTZ , Circuit Judges.

After entering into a plea agreement th at included an appeal waiver, Arnell Stewart pleaded guilty to conspiracy to dist ribute and possess with intent to distribute 280 grams or more of cocai ne base and 500 grams or more of cocaine. He was sentenced to 65 months’ imprisonment. De spite the waiver, Mr. Stewart has filed a notice of appeal to challenge the sentence. The government has moved to enforce the

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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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

### October 22, 2014

Elisabeth A. Shumaker Clerk of Court- 2 - appeal waiver. See United States v. Hahn , 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). We grant the motion and dismiss the appeal. In evaluating a motion to enforce a waiver under Hahn , we consider: “(1) whether the disputed a ppeal falls within the scope of the waiver of appellate rights; (2) whether the defe ndant knowingly and voluntar ily waived his appellate rights; and (3) whether enforcing the waiver would result in a misca rriage of justice.”

Id . at 1325. In response to the government’s motion, Mr. Stewart concedes his appeal is within the scope of the waiver. He ar gues, however, that the record does not affirmatively show that he knowingly and vo luntarily waived his right to appeal his sentence and that enforcing it would be a miscarriage of ju stice. In particular, he argues: (1) he did not unde rstand the appeal waiver a nd/or his lawyer did not effectively explain the waiver to him; and (2) the district court failed to “fully inform him of his appellate rights – or lack thereo f” at the subsequent sentencing hearing. Resp. at 1. At the change-of-plea hearing, Mr. St ewart’s lawyer was confused as to whether the plea agreement contained a waiver of a claim of ineff ective assistance of counsel concerning his sentence . After the district cour t directed him to specific language in the agreement, the lawyer c onfirmed that the “waiver does not include changes in the Guidelines or sentencing st atute [or] what the Court has indicated about effective assistance or prosecutorial misconduct.” Plea Hr’g Tr. at 12. The- 3 - court then asked Mr. Stewart: “[D] o you understand and do you agree to the limitations contained in the Plea Agreemen t on your right to appeal the sentence I will impose in this case or the manne r in which I will determine it?” Id . Mr. Stewart said: “I don’t,” and asked to speak with his lawyer. Id . After conferring with counsel, Mr. Stewart told the court: “Yes, your Honor, I understand.” Id . Setting

aside the fact that the waiv er was not as broad as Mr. Stewart’s lawyer initially thought, there is no evidence that his lawyer was ineffective in explaining it to him. More to the point, Mr. Stewart affirmatively to ld the court that he understood the

waiver.

Mr. Stewart also faults th e district court because “w hen [it] made its findings

of fact and conclusions of law, it did not specifically find Mr. Stewart knowingly and voluntarily waived his appellate rights.” Resp. at 3. We di sagree in light of the fact

that the court found that Mr. Stewart “has read and understands the terms of his Plea Agreement, including his limited waiver of appeal and . . . collateral challenge rights . . . [and] has knowingly and volunt arily signed [the Plea Agreement].” Plea Hr’g Tr. at 17. Last, Mr. Stewart argues that the distri ct court should have revisited the plea agreement with him prior to imposing the sentence. He acknowle dges that “a court’s statements during the senten cing hearing do not invalidate a plea agreement or the voluntariness of an appellate waiver,” but argues that the court should have gone over- 4 - the plea agreement to a fford him a “last chan ce to withdraw his plea.” Resp. at 5. He fails to cite any authority to support such a requirement. The motion to enforce is granted, and this appeal is dismissed.

Entered for the Court Per Curiam