* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 2 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. DONALD L. JACKSON,

Defendant-Appellant. No. 02-3104 (D.C. No. 01-CR-10070-MLB)

(D. Kan.)

ORDER AND JUDGMENT *

Before HENRY , BARRETT , and MURPHY , Circuit Judges.

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); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Donald L. Jackson appeals from a judgment and sente nce entered upon his guilty plea to one count of possession of a fir earm by a prohibited person.-2-

18 U.S.C. § 922(g)(1). In exchange for his guilty plea, charges of unlawful possession of cocaine and unlawful possession of marijuana against Mr. Jackson were dismissed. He received a sentence of incarcer ation for forty-two months. On appeal, he contends that the district court erre d in applying an enhancement for felony possession of cocaine in connection with the offense. See USSG § 2K2.1(b)(5). Mr. Jackson signed a plea agreement in connection w ith his guilty plea. Paragraph three of this plea agreement reads as fol lows: The defendant agrees, in consideration of [a recomm endation by the government for a reduction for acceptance of respon sibility and dismissal of the two drug possession charges], thathe is aware that Title 28, United States Code, Section 2255 affords a defendant the ability to challenge his conviction. Acknowledging all this, the defendant knowingly waives his right to file an appeal and/or to challenge his plea, sentence or the manner in whichthe sentence was determined in any collateral attack, including but not limited to a motion brought under Title 28, United States Code , Section 2255, in exchange for the concessions made by the United States in this plea agreement. R. Vol. I, Doc. 33 at 2 (emphasis added). The government has not raised this waiver as a bar to our consideration of Mr. Jackson’s appeal. Nevertheless, if the waiv er is effective, “we would certainly overreach our jurisdiction to entertain this appeal when the plea agreement deprived Defendant of the right to appeal.” United States v. Rubio , 231 F.3d 709, 711 (10th Cir. 2000). Moreover, “[w] e cannot ignore the-3-

jurisdictional issue because we have an independentobligation to examine our subject matter jurisdiction.” Id. at 711 n.1. We previously issued an order to show cause why thi s appeal should not be dismissed for lack of subject matter jurisdiction. Mr. Jackson responded as follows: (1) the government waived its right to en force the waiver provision; (2) this court should not raise the waiver sua sponte ; (3) this court is not a party to the plea agreement and has no independent author ity to enforce it; (4) dismissal of the appeal for lack of jurisdiction after appoin tment of counsel wastes judicial resources; (5) appointed counsel was barred by ethi cal obligations from raising the waiver; and (6) the government obtained the wai ver by deception. In view of the jurisdictional nature of the waiver of right to appeal, the first five arguments clearly lack merit. We will consider only the lastargument: whether the waiver should not be enforced because it was obtained by d eception. A defendant’s knowing and voluntary waiver of his r ight to appeal is enforceable. United States v. Black , 201 F.3d 1296, 1300 (10th Cir. 2000). Mr. Jackson contends that his waiver was not knowin g and voluntary because the government failed to inform him of its intentio n to seek a § 2K2.1(b)(5) enhancement at sentencing. He does not advance fac ts sufficient to show that the government actively misled him; only that he “reaso nably assumed” that the dismissed drug offenses would not be used to enhanc e his sentence. Nor does he-4-

challenge the statement in his plea agreement that “the United States has made no promises or representations to this defendant or hi s attorney regarding what sentence might be imposed or which sentencing guide line level will be appropriate.” R. Vol. I, Doc. 33 at 2. Mr. Jackson also fails to allege any public policy grounds for voiding his waiver of right to appeal. See, e.g., Black , 201 F.3d at 1301. Although he complains that he was deceived into entering his pl ea, he does not seek to withdraw his plea on this basis; instead, he asks u s to discard the waiver provision and, without disturbing the other benefits of the p lea accruing to him, to reach issues otherwise barred on appeal. Mr. Jackson’s arguments are insufficient to show th at the plea, including the appellate waiver, was not knowing and voluntarily entered. See United States v. Cockerham , 237 F.3d 1179, 1181 (10th Cir. 2001) (stating “kn owing and voluntary” standard). This appeal is therefore DIS MISSED for lack of subject matter jurisdiction.

Entered for the Court

Michael R. Murphy Circuit JudgeHENRY, J., specially concurring.

I agree with the majority that Jackson’s waiver of his right to appeal should be enforced in this case. I am concerned, however, with the majority’s holding that the waiver deprives us of subject matter juris diction. Although that phrase was used somewhat loosely in a footnote in United States v. Rubio , 231 F.3d 709, 711 n.1 (10th Cir. 2000), I do not believe that app ellate waivers actually strip this court of its basic subject matter jurisdiction overdirect appeals, which is conferred by Congress. See 18 U.S.C. § 3742(a)(2). A valid waiver operates as a contractual limitation on the right to appeal. See, e.g., United States v. Hernandez , 134 F.3d 1435, 1436-38 (10th Cir. 1998). The decision to enforce the waiver is subject to a number of public policy considerations. United States v. Black, 201 F.3d 1296, 1301 (10th Cir. 2000). We will not enforce the waiver, for example, where the sentence is tainted by racial bias, where the sentence exceeds the statuto ry maximum, or where the agreement was entered into without effective assist ance of counsel. Id. Invoking “subject matter jurisdiction” undercuts the public policy rationale, founded on contract theory, that undergirds these exceptions. A holding that we mustapply the waiver in every case, whether or not raised by the Government, is inconsistent with prec edent in most other circuits. These circuits have held that the waiver may itself be waived, by the Government’s failure to raise it. See, e.g., United States v. Doe , 239 F.3d 473,-2-

474-75 (2d Cir. 2001) (applying appellate waiver ru le to government’s failure to raise defendant’s waiver of right to appeal contained in plea agreement); United
States v. Nunez , 223 F.3d 956, 958 (9th Cir. 2000) (stating govern ment may lose right to assert waiver defense by failing to raise it, but holding government did raise plea waiver in that case). See also United States v. Rhodes , 253 F.3d 800, 804 (5th Cir. 2001) (“[I]n the absence of publishedauthority dictating otherwise, we will not enforce such a waiver when the governme nt explicitly states that it ‘chooses not to rely on [the defendant’s] waiver of appeal.’”). Cf. also Hunter v. United States , 160 F.3d 1109, 1113-14 (6th Cir. 1998) (stating g overnment waived right to raise defendant’s waiver of right t o bring § 2255 motion by failing to raise waiver in district court); United States v. Schmidt , 47 F.3d 188, 190, 192 (7th Cir. 1995) (stating that although government d id not rely on waiver contained in plea, court had discretion to affirm on basis of waiver, or, alternatively, t o determine merits of appeal). Significantly, two of these circuits, the Seventh a nd Ninth, have referred to the waiver as “jurisdictional,” just as we have. See United States v. Nave , 302 F.3d 719, 720-21 (7th Cir. 2002); Vences , 169 F.3d at 613. The fact that they permit a waiver of this “jurisdictional” defense ba sed on the government’s failure to raise it suggests that “jurisdiction” is being u sed in a sense to mean something less or other than “subject matter jurisdiction.” It is a truism that not every-3-

“jurisdictional” issue actually involves a court’s subject matter jurisdiction. See 15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure , § 3903, at 143 (2d ed. 1992) (noting the “notorio us variety of concepts that can be classified within the realms of jurisdiction”); see also United States v. Prentiss , 256 F.3d 971, 982 (10th Cir. 2001) (en banc) (concluding that “the Government’s failure to alleg e the Indian/non-Indian statuses of Defendant and his victim in the indictm ent did not deprive the district court of subject matter jurisdiction to hear the ca se, although Defendant ultimately may be entitled to dismissal of the indi ctment”). In short, I do not believe the Rubio court intended to establish a rule that strips us of subject matter jurisdiction whenever awaiver has been signed, without consideration of the particular facts and c ircumstances of the case. The pertinent inquiry should be whether enforcement of the waiver, which is a contractual matter, offends public policy. Although the Government did not raise the waiver inthis case, I agree with the majority that it should be enforced. The Gover nment’s failure to raise the waiver, standing alone, does not typically rise to the level of a public policy concern that vitiates the bargained-for waiver. No r do I find the arguments asserted in appellant’s response to our motion to s how cause persuasive. To invoke subject matter jurisdiction as the basis forenforcement of the waiver,-4-

however, is inconsistent with the concept that subj ect matter jurisdiction is conferred by Congress and not the parties. I woulddecide this case by enforcement of the waiver, without reference to subject matter jurisdiction.