── United States v. Berkshire ──
Court: Court of Appeals for the Tenth Circuit
Date: May 07, 2026
Category: General
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
[email protected],
a/k/a
[email protected],
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This order and judgment is not binding precedent, except under the doctrines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