United States v. McAbee, No. 23-5097 (10th Cir. 2023)
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Appellate Case: 23-5097 Document: 010110961761 Date Filed: 12/01/2023 UNITED STATES COURT OF APPEALS Page: 1 FILED United States Court of Appeals Tenth Circuit FOR THE TENTH CIRCUIT _________________________________ UNITED STATES OF AMERICA, December 1, 2023 Christopher M. Wolpert Clerk of Court Plaintiff - Appellee, v. CAMERON KELLY McABEE, No. 23-5097 (D.C. No. 4:21-CR-00361-JFH-1) (N.D. Okla.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT * _________________________________ Before BACHARACH, McHUGH, and EID, Circuit Judges. _________________________________ Cameron Kelly McAbee pleaded guilty to several crimes and received a life sentence. He has appealed even though his plea agreement included a broad appeal waiver. The government now moves to enforce the waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). We will enforce an appeal waiver if (1) the appeal falls within the waiver’s scope, (2) the defendant knowingly and voluntarily waived the right to appeal, and (3) enforcing the waiver will not result in a miscarriage of justice. See id. at 1325. Mr. McAbee does not dispute that his waiver covers this appeal or that he knowingly This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. * Appellate Case: 23-5097 Document: 010110961761 Date Filed: 12/01/2023 Page: 2 and voluntarily waived his rights. And so we need not address those issues. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005). We turn, then, to whether enforcing Mr. McAbee’s waiver will result in a miscarriage of justice. On this question, Mr. McAbee bears the burden. See United States v. Anderson, 374 F.3d 955, 959 (10th Cir. 2004). Enforcing an appeal waiver will result in a miscarriage of justice if (1) the district court relied on an impermissible sentencing factor; (2) ineffective assistance of counsel in negotiating the waiver makes it invalid; (3) the sentence exceeds the statutory maximum; or (4) the waiver is otherwise unlawful, seriously affecting the fairness, integrity, or public reputation of the proceedings. See Hahn, 359 F.3d at 1327. Mr. McAbee argues that enforcing his waiver will result in a miscarriage of justice because the district court miscalculated the sentencing-guidelines range. Through a process of elimination, we understand this argument to claim that the waiver is otherwise unlawful. An alleged sentencing error, however, does not suggest that the waiver is unlawful: “Our inquiry is not whether the sentence is unlawful, but whether the waiver itself is unlawful because of some procedural error or because no waiver is possible.” United States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir. 2007). Mr. McAbee has therefore failed to show that enforcing his appeal waiver will result in a miscarriage of justice. 2 Appellate Case: 23-5097 Document: 010110961761 Date Filed: 12/01/2023 Page: 3 We grant the government’s motion to enforce the appeal waiver. We dismiss this appeal. Entered for the Court Per Curiam 3
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