United States v. Pacheco-Huato

FILED
United States Court of Appeals
Tenth Circuit

July 21, 2010
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 09-2233
v. (D. Ct. No. 2:08-CR-01417-WJ-1)
(D. N. Mex.)
RODOLFO PACHECO-HUATO,

Defendant - Appellant.

ORDER AND JUDGMENT*

Before BRISCOE, Chief Circuit Judge, TACHA, and O’BRIEN, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in 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.

Defendant-appellant Rodolfo Pacheco-Huato pleaded guilty pursuant to a plea

agreement to one count of re-entry of a deported alien in violation of 8 U.S.C. § 1326(a)

and (b). Under the plea agreement, Mr. Pacheco-Huato waived the right to appeal his

sentence unless it was imposed outside the applicable sentencing guideline range or failed

*
This order and judgment is not binding precedent except under the doctrines of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.
to comport with the plea agreement. The district court sentenced Mr. Pacheco-Huato to

51 months’ imprisonment, in accordance with the guidelines and the calculations in the

plea agreement.

Despite his appeal waiver, Mr. Pacheco-Huato now seeks to appeal his sentence.

His attorney filed a timely notice of appeal, followed by a brief and motion to withdraw

pursuant to Anders v. California, 386 U.S. 738, 744 (1967). After reviewing the record,

we agree that there are no meritorious issues for appeal.

Anders authorizes counsel to request permission to withdraw where he has

thoroughly examined the case and has determined that any appeal would be wholly

frivolous. Anders, 386 U.S. at 744. A request to withdraw must be accompanied by a

brief indicating any potential appealable issues. Id. The defendant must then have the

opportunity to raise any points he chooses. Id. “[T]he court—not counsel—then

proceeds, after a full examination of all the proceedings, to decide whether the case is

wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the

appeal. . . .” Id.

“[W]e generally enforce plea agreements and their concomitant waivers of

appellate rights.” United States v. Hahn, 359 F.3d 1315, 1318 (10th Cir. 2004) (en banc).

In Hahn, this court held that we will enforce an appeal waiver as long as: (1) “the

disputed appeal falls within the scope of the waiver of appellate rights”; (2) “the

defendant knowingly and voluntarily waived his appellate rights”; and (3) “enforcing the

waiver would [not] result in a miscarriage of justice.” Id. at 1325. If all three elements

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are met, we enforce the waiver and dismiss the appeal. Id. at 1329.

We have reviewed the plea agreement, the transcripts of the plea and sentencing

hearings, and the brief filed by Mr. Pacheco-Huato’s counsel,1 and we conclude that the

Hahn factors have been satisfied. First, Mr. Pacheco-Huato waived “the right to appeal

any sentence within the applicable sentencing guideline range and imposed in conformity

with the plea agreement.” Because his sentence satisfies both conditions, this appeal is

within the scope of the waiver. Second, the language of the plea agreement states that

Mr. Pacheco-Huato entered into the agreement knowingly and voluntarily, and the plea

colloquy comported with Rule 11. See Hahn, 359 F.3d at 1325. Therefore, we find that

Mr. Pacheco-Huato’s decision to waive his appellate rights was knowing and voluntary.

Third, there is no evidence that enforcing the waiver would result in a miscarriage of

justice. See United States v. Elliott, 264 F.3d 1171, 1173 (10th Cir. 2001) (listing four

scenarios under which enforcing an appeal waiver would result in a miscarriage of

justice). Accordingly, we conclude that the appeal waiver is enforceable and agree with

Mr. Pacheco-Huato’s counsel that there is no nonfrivolous basis for him to challenge his

conviction or sentence.

1
Mr. Pacheco-Huato did not respond to his counsel’s Anders brief.

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 III. CONCLUSION

For the foregoing reasons, we GRANT counsel’s motion to withdraw and

DISMISS this appeal.

ENTERED FOR THE COURT,

Deanell Reece Tacha
Circuit Judge

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