United States v. Berkshire

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 7, 2026
• Docket: 26-5021
• Status: Unpublished

Opinion

Appellate Case: 26-5021 Document: 25-1 Date Filed: 05/07/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 7, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 26-5021 (D.C. No. 4:24-CR-00275-JFH-1) SCOTT JAMES BERKSHIRE, (N.D. Okla.) a/k/a Justhornytulsa2, a/k/a Steve, a/k/a jlooking1960@gmail.com, a/k/a jlooking1960@yahoo.com,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HOLMES, Chief Judge, TYMKOVICH and FEDERICO, Circuit Judges. _________________________________

Scott James Berkshire pleaded guilty to possession of child pornography in

Indian Country, in violation of 18 U.S.C. § 2252(a)(4)(A) and (b)(2). He was

sentenced to 14 years in prison. Mr. Berkshire seeks to appeal his sentence, but the

government has moved to enforce the appeal waiver contained in his plea agreement.

See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc)

(per curiam). Mr. Berkshire responded in opposition.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 26-5021 Document: 25-1 Date Filed: 05/07/2026 Page: 2

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.

The Hahn factor at issue here is whether enforcement of Mr. Berkshire’s appeal

waiver would result in a miscarriage of justice.

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 in a way that seriously

affects the fairness, integrity, or public reputation of the proceedings. See id. at

1327. “The burden rests with the defendant to demonstrate that the appeal waiver

results in a miscarriage of justice.” United States v. Anderson, 374 F.3d 955, 959

(10th Cir. 2004).

Mr. Berkshire argues that the district court’s decision to sentence him at the

high-end of the sentencing guidelines range was an abuse of discretion because it did

not properly consider Mr. Berkshire’s mitigating evidence, which amounts to a

miscarriage of justice. Mr. Berkshire’s challenge here focuses on the district court’s

sentencing decisions, not any of the miscarriage of justice categories identified in

Hahn. Mr. Berkshire’s argument that his appeal waiver is unenforceable because of

the district court’s underlying sentencing error fails. See United States v. Gutierrez,

133 F.4th 999, 1010 (10th Cir. 2025) (“[T]he relevant question under Hahn is

whether the waiver is otherwise unlawful and not whether another aspect of the

2 Appellate Case: 26-5021 Document: 25-1 Date Filed: 05/07/2026 Page: 3

sentencing proceeding may have involved legal error.” (internal quotation marks

omitted)). Accordingly, he has not met his burden to show the miscarriage of justice

exception applies to his appeal waiver.

We grant the government’s motion to enforce the appeal waiver. We dismiss

this appeal.

Entered for the Court

Per Curiam