FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 20, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 13-3102
(D.C. No. 5:11-CR-40045-JAR-1)
CARLOS RUIZ-ARREOLA, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before KELLY, TYMKOVICH, and HOLMES, Circuit Judges.
Carlos Ruiz-Arreola pleaded guilty to conspiracy to distribute 500 grams or
more of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). The
district court sentenced him to 157 months’ imprisonment, accepting the
government’s motion for a downward departure from the guidelines range of 262 to
327 months’ imprisonment. Although his plea agreement stated that he would not
*
This panel has determined that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
appeal any sentence unless it departed upwards from the guidelines range determined
by the court, Mr. Ruiz-Arreola filed a notice of appeal anyway. His counsel filed an
Anders v. California, 386 U.S. 738 (1967), brief asserting that the appeal was
frivolous.1 In addition to the Anders brief, counsel filed a motion to withdraw. See
id. at 744 (authorizing counsel to request permission to withdraw where counsel
conscientiously examines case and determines that appeal would be wholly
frivolous). This court gave Mr. Ruiz-Arreola an opportunity to file a pro se brief, but
he has not done so. See id.
After the Anders brief and motion to withdraw were filed, the government
filed a sealed motion to enforce the plea agreement. Although a motion to enforce
typically must be filed within twenty days after the district court transmits the record,
see 10th Cir. R. 27.2(A)(3)(b), we exercise our authority to suspend this rule, see id.
2.1, and we consider the motion to enforce.2
In evaluating a motion to enforce, we consider “(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
1
Without mentioning the appeal waiver set forth in the plea agreement, the brief
challenged the calculation of the guidelines sentencing range.
2
In effect, we treat the motion to enforce as the government’s brief on the
merits since the government filed the motion to enforce after Mr. Ruiz-Arreola’s
counsel filed the Anders brief.
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enforcing the waiver would result in a miscarriage of justice.” United States v. Hahn,
359 F.3d 1315, 1325 (10th Cir. 2004).
Mr. Ruiz-Arreola’s counsel concedes that (1) the appeal falls within the scope
of the waiver; (2) Mr. Ruiz-Arreola knowingly and voluntarily waived his appellate
rights; and (3) enforcing the waiver would not result in a miscarriage of justice.
Thus, counsel concludes that the waiver is valid and enforceable and there are no
non-frivolous grounds upon which to challenge Mr. Ruiz-Arreola’s conviction or
sentence.
Upon our independent review of the parties’ filings, the plea agreement, the
transcript of the plea hearing, and the transcript of the sentencing hearing, we
conclude that Mr. Ruiz-Arreola waived his right to bring this appeal.
Accordingly, we grant the government’s motion to enforce the plea agreement,
and we dismiss the appeal. We also grant Mr. Ruiz-Arreola’s counsel’s motion to
withdraw.
Entered for the Court
Per Curiam
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