FILED 

United States Court of Appeals 

Tenth Circuit 

PUBLISH June 14, 2005 

UNITED STATES COURT OF APPEALS PATRICK FISHER 

Clerk 

FOR THE TENTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plain ti ff-Appellee, 

No. 04-3134 

V. 

OSCAR MALDONADO, 

Defendant-Appellant. 

Appeal from the United States District Court 

for the District of Kansas 

(D.C. No. 03-CR-20076-CM) 

Robert S. Streepy, Assistant United States Attorney, District of Kansas, 

Kansas City, Kansas, appearing for Plaintiff-Appellee. 

Howard A. Pincus, Assistant Federal Public Defender, appearing for 

Defendant-Appel !ant. 

Before TACHA, Chief Judge, HENRY and LUCERO, Circuit Judges. 

PER CURIAM 

This matter is before the court on the government's motion to enforce 

the plea agreement and the defendant's response thereto. We grant the 

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government's motion and dismiss the appeal. 

The defendant pled guilty to a two-count indictment charging him 

with distribution of cocaine and possession of a firearm in furtherance of a 

drug trafficking offense. 1 The plea agreement contains the following 

waiver of appellate rights: 

Defendant knowingly and voluntarily waives any 

right to appeal or collaterally attack any matter in 

connection with this prosecution, conviction and 

sentence. The defendant is aware that Title 18, 

U.S.C. § 3742 affords a defendant the right to 

appeal the conviction and sentence imposed. By 

entering into this agreement, the defendant 

knowingly waives any right to appeal a sentence 

imposed which is within the guideline range 

determined appropriate by the court. The defendant 

also waives any right to challenge a sentence or 

otherwise attempt to modify or change his sentence 

or manner in which it was determined in any 

collateral attack, including, but not limited to, a 

motion brought under Title 28, U.S.C. § 2255 

[except as limited by United States v. Cockerham, 

237 F.3d 1179, 1187 (10th Cir. 2001)] and a motion 

brought under Title 18, U.S.C. § 3582(c)(2). In 

other words, the defendant waives the right to 

appeal the sentence imposed in this case except to 

the extent, if any, the court departs upwards from 

the applicable sentencing guideline range 

determined by the court. However, if the United 

States exercises its right to appeal the sentence 

imposed as authorized by Title 18, U.S. C. § 

3 7 42(b ), the defendant is released from this waiver 

The defendant does not challenge his conviction or the sentence 

imposed for the firearm offense. 

2 

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and may appeal the sentence received as authorized 

by Title 18, U.S.C. § 3742(a). 

Plea Agreement, at p. 4-5. 

The agreement also recognizes the possible use of relevant conduct by 

the district court to calculate the guideline range. However, the parties left 

open the question of the amount of cocaine involved and reserved the right 

to present evidence to the court regarding quantity. 

At the sentencing hearing, the court heard testimony on quantity. The 

government presented evidence that the defendant had offered to sell a 

confidential informant a kilo, in addition to the 27 grams he admitted 

selling. The defendant testified that he was only bragging to impress the 

confidential informant and that he had no way to obtain that much cocaine. 

The district court agreed with the government that the additional kilo 

should be taken into consideration in calculating the defendant's sentence. 

The resulting guideline range was 70 to 87 months. The judge sentenced the 

defendant to the low end of the range, 70 months. 

Under United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004), 

the court of appeals, in reviewing appeals brought 

after a defendant has entered into an appeal waiver, 

determine[s]: (1) whether the disputed appeal falls 

within the scope of the waiver of appellate rights; 

(2) whether the defendant knowingly and 

voluntarily waived his appellate rights; and (3) 

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whether enforcing the waiver would result in a 

miscarriage of justice as we define herein. 

Miscarriage of justice results where: 1) "the district court relied on 

an impermissible factor such as race;" 2) "ineffective assistance of counsel 

in connection with the negotiation of the waiver renders the waiver 

invalid;" 3) "the sentence exceeds the statutory maximum;" or 4) "the 

waiver is otherwise unlawful." Id., at 1327. To satisfy the last factor, 

'"'the error [must] seriously affect[] the fairness, integrity or public 

reputation of judicial proceedings."' Id. (quoting United States v. Olano, 

507 U.S. 725,732 (1993)). 

The defendant makes two claims under the Hahn miscarriage of 

justice inquiry: that the sentence exceeds the statutory maximum as 

defined by Blakely v. Washington, 124 U.S. 2531 (2004); 2 and that, because 

the facts found by the judge under a preponderance of the evidence standard 

more than doubled his drug sentence, the Blakely/Booker error seriously 

affects the "fairness, integrity or public reputation of judicial 

proceedings." He argues that if the court had used only the amount he 

2 Raising Blakely is sufficient to raise issues under United States 

v. Booker, 125 S.Ct. 738 (2005). See United States v. Clifton, 406 F.3d 

1175. n. 1 (10th Cir. 2005) (This court "must apply the holdings in Blakely 

and Booker to all cases in which a defendant properly raised an issue under 

either case.''). 

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admitted, the statutory maximum for the drug offense would be 33 months. 

These arguments are without merit. 

This court held in United States v. Porter, 405 F. 3 d 113 6, 1144 (10th 

Cir. 2005), that "statutory maximum" for purposes of Hahn does not have 

the same meaning as that given by the Court in Blakely and extended to the 

sentencing guidelines by United States v. Booker, 125 S.Ct. 738 (2005). 

'" [ S ]tatutory maximum' under the Hahn miscarriage of justice inquiry 

refers to the statute of conviction." See also United States v. Green, 405 

F .3d 1180, 1193-94 (10th Cir. 2005) ("Moreover, using the Blakely/Booker 

definition of' statutory maximum' in interpreting Hahn would be improper 

because doing so would render it virtually impossible for a defendant to 

waive his or her Sixth Amendment Booker rights. After all, ifwe were to 

use the Blakely/Booker definition of' statutory maximum' in interpreting 

Hahn, a defendant could appeal his or her sentence, alleging a 

constitutional Booker error (or Blakely challenge), and raise that issue 

regardless of a general waiver of appellate rights in the plea agreement.") 

Thus, the defendant's 70-month sentence does not exceed the Hahn 

statutory maximum of 20 years. 

We also reject the defendant's contention that enforcement of the 

waiver seriously affects the fairness, integrity or public reputation of 

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judicial proceedings. The defendant bears the burden of persuasion on this 

point. Porter, 405 F.3d at 1143. The factors we consider include whether 

the plea agreement stated the appropriate statutory maximum, informed the 

defendant that he was giving up multiple constitutional and appellate rights 

in exchange for concessions from the government, and implied that the 

sentence would be imposed in accordance with the guidelines then in effect. 

We also review whether the defendant's sentence conforms with the terms 

of the plea agreement and the defendant's understanding of the plea. Id., at 

1145. As in Porter, the sentence imposed by the district court complies 

with the terms of the agreement and the understanding expressed by the 

defendant at the plea hearing. 

In addition, contrary to the defendant's argument, the mere fact that 

the defendant's sentence is based on judge-made findings does not 

seriously affect the fairness, integrity or public reputation of judicial 

proceedings. When a court errs by relying on judge-made findings, that is 

considered a "'constitutional Booker error." United States v. GonzalezHuerta, 403 F .3 d 72 7, 73 1 (10th Cir. 2005); United States v. Mozee, 405 

F.3d 1082 (10th Cir. 2005). 

Constitutional Booker error, however, is unique 

because the remedy for such an error is not a direct 

cure. That is, the remedy is not to set aside the 

unconstitutional judicial finding and remand for a 

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Id., at I 091. 

retrial at which the jury would have to find all facts 

needed to determine the offense level. Rather, the 

remedy--a remand for resentencing under a 

discretionary guidelines regime--only cures the 

error indirectly. Thus, in the instant case, the 

question before us is whether a reversal and remand 

for resentencing by the district court under a 

discretionary guidelines regime would advance the 

fairness, integrity, or public reputation of the 

courts. 

The defendant's argument that the district court would have 

sentenced him to a term not taking into consideration the larger amount of 

drugs is unconvincing. The defendant testified at the sentencing hearing 

that he had no intention and no way to provide the additional drugs. The 

court, however, found the government's evidence more persuasive. 

In addition, although the court rejected the government's request to 

impose enhancements for obstruction of justice and for use of a minor and 

sentenced the defendant to the low end of the guidelines range, there is no 

indication that the judge would have imposed a shorter sentence. 

THE COURT: The court is ready to announce its 

proposed findings of fact and tentative sentence. In 

determining the sentence to be imposed, the court 

has taken into consideration the nature of the instant 

offense, defendant's personal history, 

characteristics, and criminal history. What's 

troubling to the court, Mr. Maldonado, is that this 

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was not the first time you appeared in a court to be 

sentenced. You know, you tell the court that you're 

sorry for what you did, but you had several other 

times where a court had told you stop, and you chose 

to continue with your lifestyle, your choices. You 

say you feel bad for your family who's here. Why 

didn't you think of your family after the first time 

you committed a crime? 

DEFENDANT THROUGH INTERPRETER: 

Probably because I was too young at the time. But 

now that I've been locked up, I've matured a lot, 

and I've considered the pain and suffering that I'm 

putting my family through, and I want to get ahead 

with my life. 

THE COURT: You know, it's too bad you didn't 

think of that before, because now you' re in a 

position where you have some very serious sentence 

time that you' re going to have to serve. Now the 

range is 70 to 87 months. Your attorney's asking 

for the low end. The government's gone along with 

that. You know, the court would hope that you don't 

believe that if you get the low end, that the court 

somehow is minimizing what you did. I mean, you 

committed a very serious offense. You put yourself 

at danger. That firearm in your - on your person, 

you know, how would someone else know that it 

didn't have any bullets in it? You know, and if you 

weren't telling me the truth and if you had bullets in 

it, what if you would have used it? this drug 

activity you were involved in, very dangerous. You 

say you care about your family. How would they 

feel if something happened to you or if you hurt 

someone else? I hope what you've said is the truth 

to me, and that finally at this point, you want to 

change what you 're doing, and not put yourself in a 

position where you get locked up or have your 

family miss you for an extended period of time. The 

court believes that a sentence at the low end which 

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would be 70 months for Count One is appropriate. 

Transcript of Sentencing Hearing, 3/23/04, at pp. 42-43. 

Thus, there is "no basis for us to assume that [the defendant] would 

receive a lesser sentence if he were resentenced under a discretionary 

sentencing regime in which the district court is required to 'consider' the 

guidelines when it exercises its discretion." Mozee, 405 F.3d at 1092. 

Accordingly, we conclude that the Blakely/Booker error did not seriously 

affect the fairness, integrity or public reputation of judicial proceedings. 

The government's motion to enforce the plea agreement is 

GRANTED and this appeal is DISMISSED. The defendant's motion to 

refer the government's motion to the merits panel is DENIED. The 

mandate shall issue forthwith. 

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