United States v. McAbee

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 1, 2023
• Docket: 23-5097
• Status: Unpublished

Opinion

Appellate Case: 23-5097 Document: 010110961761 Date Filed: 12/01/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 1, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-5097 (D.C. No. 4:21-CR-00361-JFH-1) CAMERON KELLY McABEE, (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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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