UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. WILLIS YAZZIE, Defendant-Appellant. No. 14-2043 (D.C. No. 1:10-CR-01761-JB-1) (D. N.M.)

ORDER AND JUDGMENT *

Before HARTZ , HOLMES , and PHILLIPS , Circuit Judges.
Willis Yazzie was charged with two counts of aggravated sexual abuse in violation of 18 U.S.C. §§ 11 53, 2241(c), and 2246(2)(D). He entered into a plea agreement with the government , pleading guilty to one count of aggravated sexual abuse. The plea agreement st ated that Mr. Yazzie was waiving his right to appeal his conviction and the sentence imposed. The di strict court sentenced Mr. Yazzie to a term of imprisonment of 188 months.

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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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

### July 23, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - Despite the appellate waiver in his plea agreement, Mr . Yazzie filed a notice of appeal. He seeks to appeal the district court’s denial of his motion to withdraw his guilty plea. The government has moved to enforce the appeal waiver pursuant to United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). When reviewing a motion to enforce, we consider “(1) whether the disputed appeal falls within the scope of the waiver of appella te rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.” Id. at 1325. Mr. Yazzie concedes that hi s appeal is within the scope of his appeal waiver.
See Resp. at 13-14. He also admits that the plea agreemen t stated that he knowingly and voluntarily entered into the agreement and that ther e was an adequate Rule 11 plea colloquy. See id . at 14. He contends, however, that enforcing the waiver would result in a misca rriage of justice. To determine whether enforcing th e appeal waiver would result in a miscarriage of justice, we consider whethe r any of the following four situations have occurred: (1) “the district court relied on an impermissible fa ctor such as race”; (2) “ineffective assistance of counsel in connection with the appeal waiver renders the waiver invalid”; (3) “the sentence exceeds the statut ory maximum”; or (4) “the waiver is otherwise unlawful.” Hahn , 359 F.3d at 1327. In or der to satisfy the fourth situation, “the error must seriously affect the fairness, integrity or public reputation of the judicial proceedings.” Id. (brackets and internal quot ation marks omitted).- 3 - Mr. Yazzie argues only that the fourth situation is present here, although he omits the language requiring the waiver to be “otherwise unlawful,” and characterizes this factor instead as “whe ther the fairness, integrity or public reputation of the judicial proceedings are affe cted.” Resp. at 15. Using this altered formulation of the fourth situation, Mr. Yazzie argues that “his numerous claims that he should have been allowed to wit hdraw his plea, which the district court denied . . . , seriously affe cted the fundamental fairness of the judicial proceeding against him.” Id . at 16. Mr. Yazzie has not met his burden of demonstrating that his waiver is otherwise unlawful. His contention that he should have been allowed to withdraw his guilty plea and that the district court’s deni al of his request affected the fairness of the proceedings against him does not dem onstrate that his appeal waiver was unlawful. It is simply anothe r way of asserting that the di strict court erred in denying his motion to withdraw his plea and is the sa me assertion of erro r that he seeks to raise on appeal. “An appeal waiver is not ‘unlawful’ merely because the claimed error would, in the absence of waiver, be appealable. To so hold would make the waiver an empty gesture.” United States v. Sandoval , 477 F.3d 1204, 12 08 (10th Cir. 2007). Mr. Yazzie has not demonstrated that enforcing the a ppeal waiver would result in a misca rriage of justice.- 4 - For the foregoing reasons, we grant th e government’s motion to enforce the appeal waiver and di smiss the appeal.

Entered for the Court Per Curiam