F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 9, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-2064
(D.C. No. CR-05-1479 M CA)
AG USTIN TO VA R-CH AV EZ, (D . N.M .)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before L UC ER O, HA RTZ, and TYM KOVICH, Circuit Judges.
Defendant Agustin Tovar-Chavez pled guilty to one count of illegal reentry
to the United States after deportation subsequent to a felony conviction, in
violation of 8 U.S.C. §§ 1326(a)(1), (a)(2) and 8 U.S.C. § 1326(b)(2). Pursuant to
the plea agreement, M r. Tovar-Chavez waived his “right to appeal any sentence
within the [applicable] statutory range.” M ot. to Enforce, Ex. A, at 5. Appearing
*
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 This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
pro se, M r. Tovar-Chavez filed a notice of appeal from his conviction and
sentence. The government has filed a motion to enforce its plea agreement with
M r. Tovar-Chavez. M r. Tovar-Chavez’s attorney filed a response to the
government’s motion stating his belief that there is no legitimate basis for an
appeal. 1 W e grant the government’s motion and, accordingly, dismiss the appeal.
This court will enforce a criminal defendant’s waiver of his right to appeal
so long as the following three elements are satisfied: (1) “the disputed appeal
falls within the scope of the w aiver of appellate rights,” (2) the defendant’s
waiver of his appellate rights was knowing and voluntary, and (3) enforcing the
waiver w ill not result in a miscarriage of justice. United States v. Hahn, 359 F.3d
1315, 1325 (10th Cir. 2004) (en banc) (per curiam). W e have reviewed the plea
agreement and the response from M r. Tovar-Chavez’s counsel, and we conclude
that the Hahn factors have been satisfied.
Accordingly, we GRANT the government’s motion to enforce the plea
agreement and DISM ISS the appeal. The mandate shall issue forthwith.
ENTERED FOR THE COURT
PER CURIAM
1
This court attempted to give M r. Tovar-Chavez an opportunity to file an
opposition to the government’s enforcement motion, but the court’s
correspondence to him was returned, marked as refused.
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