                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              July 1, 2005
                                TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 04-3283
          v.                                             (D. of Kan.)
 MARTIN LEE PARIS,                              (D.C. No. 03-CR-40031-RDR)

               Defendant-Appellant.


                           ORDER AND JUDGMENT            *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.           **




      Martin Lee Paris appeals the 180-month sentence the district court imposed

after he pled guilty to one count of bank robbery in violation of 18 U.S.C.

§ 2113(a). Specifically, Paris claims the district court violated his Sixth

Amendment rights when it enhanced his sentence based on prior convictions

because they were neither admitted nor found by a jury beyond a reasonable


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
doubt. Taking jurisdiction pursuant to 28 U.S.C. § 1291, we find Paris waived his

right to appeal and dismiss the appeal.

       Paris entered into a plea agreement whereby he

              knowingly and voluntarily waiv[ed] any right to appeal or
              collaterally attack any matter in connection with [his]
              prosecution, conviction and sentence. . . . [He also] waive[d]
              the right to appeal the sentence imposed in this case except to
              the extent, if any, the court depart[ed] upwards from the
              applicable sentencing guideline range determined by the court.

ROA Vol. 1; Tab 59. To ascertain whether this appellate wavier should be

enforced, we use the three-prong approach set forth in       United States v. Hahn , 359

F.3d 1315, 1325 (10th Cir. 2004). Thus, we must determine: “(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) whether enforcing the waiver would result in a miscarriage of justice.”         Id.

       First, this appeal is within the scope of the waiver. The district court did

not “depart upwards.” The district court not only sentenced Paris within the

“applicable sentencing guideline range,” but also imposed an alternative sentence

due to the uncertainty of the legal landscape at the time of sentencing.      1
                                                                                  Second,

Paris knowingly and voluntarily waived his right to appeal as evidenced by the


       1
        While Paris’s case and sentence were being decided, the Supreme Court
heard arguments in Blakely v. Washington, 124 S. Ct. 2531 (2004). Since then,
the Court has not only handed down Blakely, but also United States v. Booker,
125 S. Ct. 738 (2005).

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language of the plea agreement and the Petition To Enter Plea Of Guilty And

Order Entering Plea. Finally, enforcing the waiver would not result in a

miscarriage of justice because neither of the district court’s alternative sentences

violate United States v. Booker, 125 S. Ct. 738 (2005), due to the fact that the

only challenged enhancement is based on a prior conviction.      See Booker , 125 S.

Ct. at 756 (reaffirming the holding in   Apprendi v. New Jersey , 530 U.S. 466

(2000), that a court does not violate a defendant’s Sixth Amendment rights when

it determines the fact of prior conviction).

       Therefore, we find Paris waived his right to appeal his sentence. As a

result, we dismiss the appeal. We also deny the government’s Motion to Dismiss

Appeal Because of Supervening Change of Law or Mootness.


                                                 Entered for the Court


                                                 Timothy M. Tymkovich
                                                 Circuit Judge




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