FILED
United States Court of Appeals
Tenth Circuit
August 6, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-3366
(D.C. No. 2:07-CR-20122-KHV-2)
JOSE LOPEZ, a/k/a David Cerpa, (D. Kan.)
a/k/a Gordo, a/k/a Eduardo Ruiz-
Acunis,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, MURPHY, and HARTZ, Circuit Judges.
This matter is before the court on the government’s motion to enforce the
appeal waiver contained in defendant Jose Lopez’s plea agreement. The
defendant pleaded guilty to possessing methamphetamine with intent to distribute
it. Pursuant to the plea agreement, the defendant waived his right to appeal his
*
This panel has determined unanimously 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 This order and judgment is not binding precedent, except under the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.
conviction or his sentence, provided his sentence was within the advisory
sentencing guideline range determined by the district court to apply. The
defendant’s sentence was below the statutory maximum and within the advisory
guideline range determined by the court. Nevertheless, the defendant filed a
notice of appeal.
The government filed a motion to enforce the plea agreement pursuant to
United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).
In response, the defendant, through counsel, requests the court to permit him to
appeal his sentence, but he advances no arguments why the appeal waiver is
unenforceable, and he concedes that “the Plea Agreement does not allow this
appeal.” Response at 2. We have reviewed the motion, the record and the
defendant’s response, and we agree that the defendant’s proposed appeal falls
within the scope of the appeal waiver, that he knowingly and voluntarily waived
his appellate rights, and that enforcing the waiver would not result in a
miscarriage of justice. See id., 359 F.3d at 1325 (describing the factors this court
considers when determining whether to enforce a waiver of appellate rights).
Accordingly, we GRANT the motion to enforce the appeal waiver and
DISMISS the appeal.
ENTERED FOR THE COURT
PER CURIAM
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