* This order and judgment is not binding precedent, e xcept under the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

### JUL 3 2001 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. TYRONE BENALLY,

Defendant-Appellant. No. 01-2020 (D.C. No. CR-98-329-JC) (D. N.M.)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, PORFILIO , and ANDERSON , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument. Defendant pleaded guilty to sexually abusing a chil d in Indian country. At the initial sentencing, the district court departeddownward on the basis of1 The fact that the government’s motion was filed bey ond the suggested

fifteen-day period after the filing of the notice o f appeal, see 10th Cir. R. 27.2(A)(3), will not doom its motion. Even in the face of an untimely motion, this court has an independent obligation to determi ne its subject matter jurisdiction. See United States v. Rubio , 231 F.3d 709, 711 n.1 (10th Cir. 2000). 2-- aberrant behavior prompting an appeal by the govern ment. This court reversed and remanded for resentencing. See United States v. Benally , 215 F.3d 1068, 1078 (10th Cir. 2000). After a second sentencing h earing, the district court resentenced defendant without the adjustment to acc ount for aberrant behavior because the judge concluded that defendant had prod uced no new evidence which had not already been rejected by the Tenth Circuit as grounds for departure. Defendant appeals that decision. The government has moved to dismiss the appeal for lack of subject matter jurisdiction, citing defendant’s waiver of h is right to appeal in the plea agreement. 1 In the plea agreement, defendant agreed to waive “the right to appeal any sentence within the maximum provided in the statute[s] of conviction (or the manner in which that sentence was determined).” R. Vol. I, tab 20 at 5. Defendant also agreed to waive “the right to appeal the sentence imposed in this case except to the extent, if any, that the court m ay depart upwards from the applicable sentencing guideline range as determinedby the court.” Id. at 6. Defendant’s sentence did not exceed the statutory m aximum, and the court did not depart upwards from the applicable guideline range.-3-

“This court will hold a defendant to the terms of alawful plea agreement. A defendant’s knowing and voluntary waiver of the s tatutory right to appeal his sentence is generally enforceable.” United States v. Atterberry , 144 F.3d 1299, 1300 (10th Cir. 1998) (citation and quotation omitt ed). Our review of the plea agreement and the transcripts of the sentencing hearings reveals nothing to suggest that defendant’s waiver was either unknowin g or involuntary or that defendant was unaware of the consequences of his pl ea. Nor do we agree with defendant’s contention that th e plea agreement should be set aside on the basis of fundamental unf airness. As noted above, if a plea agreement is entered into knowingly and volunt arily and is not unlawful, it will be enforced. United States v. Fortier , 180 F.3d 1217, 1223 (10th Cir. 1999). The fact that his plea agreement barred defendant f rom appealing his sentence but did not similarly prohibit an appeal by the governm ent does not render the plea agreement unenforceable. Further, defendant’s argu ment that, because the waiver failed to specify a sentencing range it is contraryto public policy, has been foreclosed by this court’s opinion in United States v. Rubio , 231 F.3d 709, 713 (10th Cir. 2000) (holding that where, as here, a pl ea agreement is governed by Fed. R. Crim. P. 11(e)(1)(B), a specific sentence o r sentencing range need not be included in the agreement).-4-

The final issue advanced by defendant in oppositionto the government’s motion to dismiss is that the parties did not conte mplate the issues that would be raised by the remand at the time they entered into the plea agreement. Defendant states that he is not challenging his sentence per se but only the district court’s erroneous belief that it was without the authority to grant a downward departure due to the remand. The fact that the parties did n ot foresee all future issues at the time the plea agreement was agreed to does not rend er the agreement unenforceable. And finally, defendant fails to exp lain how the remand by this court somehow affected his initial decision to plea d guilty and waive his appellate rights. See Atterberry , 144 F.3d at 1301. We therefore hold that the waiver in this case appl ies. The appeal is
DISMISSED.

Entered for the Court

Stephen H. Anderson Circuit Judge