* This order and judgment is not binding precedent, except under the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

### February 8, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 05-5032

v. (N.D. Oklahoma) ANTHONY VINCENT ROBINSON,

Defendant-Appellant. (D.C. No. 04-CR-102-SEH)

ORDER AND JUDGMENT *

Before EBEL , McKAY , and HENRY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See F ED
. R. A PP
. P. 34(a)(2); 10 TH C IR
. R. 34.1(G). The case is therefore ordered submitted without oral argument. On September 24, 2004, Anthony Vincent Robinson ple aded guilty to possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). As part of the plea agreement, Mr. Robinso n expressly waived his right to-2-

appeal the district court’s sentence if the sentenc e was within the guideline range applicable to the statute of conviction as determin ed by the district court. Despite the appellate waiver, Mr. Robinson challenges the d istrict court’s calculation of his base offense level and criminal history category on appeal. For the reasons described below, we enforce Mr. Robinson’s waiver o f appellate rights and dismiss his appeal.

I. BACKGROUND In his September 2004 plea agreement, Mr. Robinson admitted that in September 2003 he “possessed several graphic image files depicting minors engaged in sexually explicit conduct. [He] receive d those images by downloading them through use of a computer.” Rec. vol. I, doc. 21, at 7 (Plea Agreement, filed Sept. 24, 2004). He used a computer file-sharing p rogram called “KaZaA” to download graphic image files “by searching the Inte rnet to find other ‘KaZaA’ users who had graphic image files depicting minors engaged in sexually explicit conduct.” Id. Between approximately February 2003 and February 2 004, he used the “KaZaA” program to download many of these graph ic image files to his “KaZaA” shared folder. Id. at 7-8. The files in Mr. Robinson’s shared folder were “immediately . . . available to any individual who was using the ‘KaZaA’ program on a computer and who searched the Internetusing certain search terms-3-

associated with the graphic image files contained i n [his] ‘KaZaA’ shared folder. Id. at 8. His plea agreement also contained an express waiverof certain rights to a direct appeal. It stated:

In consideration of the promises and concessions ma de by the United States in this plea agreement, the Defendantknowingly and voluntarily agrees to the following terms: a. the Defendant waives the right to directly appea l the conviction and sentence pursuant to 28 U.S.C. § 1291; and, b. the Defendant waives the right to appeal the se ntence when the sentence is within the guideline range applicable t o the statutes of conviction as determined by the district court. The Defendant also waives the right to appeal all ex post facto claims related to the application of the sentencing guidelines used b y the district court; and c. the Defendant reserves the right to appeal an upward departure by the district court from the sentencing guideline range under U.S.S.G. § 5K2; or, when the sentence exceeds the s tatutory maximum . . . . Id. at 3. In the plea agreement, Mr. Robinson further stipulated that (1) his sentence would “be determined under the United States Senten cing Guidelines;” (2) he waived “any right to have the facts that determine his offense level . . . be alleged in an indictment and found by a jury beyond a reaso nable doubt;” and (3) he waived “all constitutional challenges to the United States Sentencing Guidelines.” Id. at 5.-4-

During the plea hearing, the district court informe d Mr. Robinson that, by pleading guilty, he was giving up his rights to a j ury under the Sixth Amendment and consenting to “judicial facts [sic] finding in all respects, both as guilt or innocence and as to sentencing.” Rec. vol. I, doc. 30, at 5 (Hr’g on Change of Plea, dated Sept. 24, 2004). The district court sp ecifically directed Mr. Robinson’s attention to the waivers of constitution al and appellate rights, and Mr. Robinson stated that he understood the waivers and consulted with his attorney about them. Id. at 13-14. The court also informed Mr. Robinson that the maximum statutory penalty for his offense was ten y ears’ imprisonment and/or a $250,000 fine. Id. at 9-10. After reviewing the terms of the plea agreement wit h Mr. Robinson, the court accepted his plea and stated: [B]ased upon your admissions, your sworn petition t o enter a plea of guilty, your demeanor, your clear statements and re sponsive answers, the Court finds that there is a factual basis for y our plea of guilty; further that your plea of guilty is made voluntaril y and with a full understanding of the charges against you and with afull knowledge of the consequences of such plea of guilty. The Courttherefore accepts your plea of guilty and finds that you are guilty a s charged. Id. at 17-18. The pre-sentence report recommended an offense leve l of 26 and criminal history category III, with a sentencing range of 78 to 97 months’ imprisonment. On February 18, 2005, the district court sentenced Mr. Robinson to 80 months’1 The parties do not dispute application of the 2003 edition of the

Guidelines. Effective November 1, 2004, Section 2G 2.4 was deleted by consolidation with Section 2G2.2. -5- imprisonment, followed by three years’ supervised r elease. As set forth in the plea agreement, the government dismissed the remain ing eleven counts of the twelve-count indictment.

II. DISCUSSION On appeal, Mr. Robinson contends the district courterred by sentencing him under a base offense level of 17 for “trafficki ng” materials depicting a minor engaged in sexually explicit conduct. See U.S.S.G. § 2G2.2. 1 Rather, Mr. Robinson argues that he should have been sentenced under a base offense level of 15 for “possession” of such materials. See U.S.S.G. § 2G2.4. He also argues that the district court erred when it (1) added one crim inal history point for a deferred judgment later expunged from his record, and (2) ad ded his prior conviction for actual physical control of a motor vehicle to his c riminal history category’s calculation. The government maintains that we should enforce Mr. Robinson’s appellate waiver and dismiss his appeal. Because the waiver may be dispositive of Mr. Robinson’s appeals, we first determine whether to e nforce the agreement between him and the government. See United States v. Clayton , 416 F.3d 1236, 1238 (10th-6-

Cir. 2005) (concluding that the government may enfo rce a waiver of appellate rights through its brief on the merits). This circuit “generally enforce[s] plea agreements and their concomitant waivers of appellate rights.” United States v. Hahn , 359 F.3d 1315, 1318 (10th Cir. 2004) (en banc). In considering how to resolv e appeals brought by defendants who have waived certain appellate rights in a plea agreement, we must determine (1) if an appeal falls within the scope o f the appellate waiver; (2) whether the defendant’s waiver of appellate rights was knowing and voluntary; and (3) whether enforcement of the appellate waiverwould result in a miscarriage of justice. Id. at 1325. In his reply brief, Mr. Robinson does no t challenge the first two factors under Hahn and only argues that enforcement of the waiver would constitute a miscarriage of justice. Aplt’s Reply Br. at 1-3.
1. Scope of the appellate waiver The language of Mr. Robinson’s plea agreement encompasses his appeal. Under the waiver, he “knowingly and voluntarily wai ve[d]” his “right to appeal the sentence when the sentence is within the guidel ine range applicable to the statutes of convictions as determined by the distri ct court.” Rec. vol. I, doc. 21, at 3-4. The waiver contained two exceptions: “the right to appeal an upward departure by the district court from the sentencing guideline range under U.S.S.G. § 5K2; or, when the sentence exceeds the statutory maximum.” Id. Mr.-7-

Robinson’s claims on appeal–that the district courtapplied a wrong Guidelines provision and miscalculated his criminal history category–do not fall within those exceptions. In addition, the sentence of 80 months ’ imprisonment falls within the “statutory maximum” of ten years’ imprisonment unde r 18 U.S.C. § 2252(a)(4)(B) and (b)(2). See United States v. Green , 405 F.3d 1180, 1194 (10th Cir. 2005) (concluding that the term “statutory maximum,” in aplea agreement permitting an appeal in the limited circumstance of a sentence ex ceeding the statutory maximum, refers to the maximum penalty for the stat ute of conviction).
2. Knowing and voluntary waiver In determining whether a defendant’s waiver of his right to appeal is made knowingly and voluntarily, we consider (1) “whetherthe language of the plea agreement states that the defendant entered the agr eement knowingly and voluntarily,” and (2) whether there is “an adequate Federal Rule of Criminal Procedure 11 colloquy.” Hahn , 359 F.3d at 1325. The defendant bears the “burden to present evidence from the record establi shing that he did not understand the waiver.” Id. at 1329 (quoting United States v. Edgar , 348 F.3d 867, 872-73 (10th Cir. 2003)). Mr. Robinson does not contend on appeal that he ent ered the agreement unknowingly or involuntarily. As noted above, he s tipulated in the plea agreement that he “knowingly and voluntarily waive[ d]” his “right to appeal the-8-

sentence when the sentence is within the guideline range applicable to the statutes of convictions as determined by the district court. ” Rec. vol. I, doc. 21, at 3-4. Further, at the plea colloquy, Mr. Robinson stated that he understood the charges, the factual basis for the plea, and his waiver of c onstitutional and appellate rights. Id. , doc. 30, at 7-8, 14-15. In light of these acknow ledgments, the district court found that his “plea of guilty [was] made voluntari ly and with a full understanding of the charges against [him] and with a knowledge of the consequences of such plea of guilty.” Id. at 18. Thus, Mr. Robinson knowingly and voluntarily waived his appellate rights.

3. Miscarriage of justice Finally, we consider whether enforcement of Mr. Rob inson’s waiver would result in a miscarriage of justice. Mr. Robinson c laims that he “could not reasonably have been expected to answer in the affi rmative if asked when he pled guilty if he was waiving the rights to appeal use o f the wrong guideline or use of a wrongly-found fact.” Aplt’s Reply Br. at 2. “[E]nforcement of an appellate waiver does not resu lt in a miscarriage of justice unless enforcement would result in one of . . . four situations . . . .” Hahn , 359 F.3d at 1327. Those circumstances include (1) “the district court’s reli[ance] on an impermissible factor such as race;” (2) “inef fective assistance of counsel in connection with the negotiation of the [appellate] waiver;” (3) “where the-9-

sentence exceeds the statutory maximum;” or (4) “wh ere the error is otherwise unlawful.” Id. (quoting United States v. Elliott , 264 F.3d 1171, 1173 (10th Cir. 2001)). For Mr. Robinson to satisfy the fourth cir cumstance, the error must seriously affect the fairness, integrity, or public reputation of judicial proceedings. See United States v. Olano , 507 U.S. 725, 732 (1993); Hahn , 359 F.3d at 1327. Mr. Robinson offers no arguments under the first tw o situations. As to the third exception, the district court’s sentence did not exceed the statutory maximum of ten years’ imprisonment. See Green , 405 F.3d at 1194. Further, Mr. Robinson cannot show that the waiver i s otherwise unlawful and seriously affects the fairness, integrity, or p ublic reputation of judicial proceedings. He “bears the burden of persuasion onthis point.” United States v. Maldonado , 410 F.3d 1231, 1233 (10th Cir. 2005). The factors we consider include whether the plea ag reement stated the appropriate statutory maximum, informed the defenda nt that he was giving up multiple constitutional and appellate rig hts in exchange for concessions from the government, and implied that the sente nce would be imposed in accordance with the guidelines then i n effect. We also review whether the defendant’s sentence conforms wi th the terms of the plea agreement and the defendant’s understanding of the plea. Id. at 1234. We have carefully reviewed the briefs and record on appeal and conclude that the sentence complies with the terms of the pl ea agreement and Mr. Robinson’s understanding at the plea hearing. The plea agreement appropriately-10-

stated the statutory maximum of ten years’ imprison ment for his offense, and he recognized under the agreement that “the Court has the final discretion to impose any sentence up to the statutory maximum.” Rec. vo l. I, doc. 21, at 12. His sentence was below the statutory maximum, and was w ithin the applicable Guidelines range of 78 to 97 months as determined b y the district court. Further, the plea agreement stipulated that his sentence wou ld be determined under the Guidelines. Therefore, we enforce Mr. Robinson’s appellate waiv er with respect to the issues raised on his appeal because (1) his sentenc ing challenges fall within the scope of the waiver, (2) he knowingly and voluntari ly waived his appellate rights, and (3) enforcement of the waiver does not result i n a miscarriage of justice.

III. CONCLUSION Accordingly, we ENFORCE Mr. Robinson’s waiver of ap pellate rights and DISMISS the appeal.

Entered for the Court,
Robert H. Henry Circuit Judge