United States v. Montalvo-Maldonado

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 13, 2007
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. 06-4302
(D.C. No. 2:06-CR-104-TC)
EU SEBIO M O N TA LV O - (D. Utah)
M A LD O NA DO ,

Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before BR ISC OE, M cCO NNELL, and TYM KOVICH, Circuit Judges.

Defendant pled guilty to illegal reentry following removal in violation of

8 U.S.C. § 1326. His plea agreement states that he “knowingly, voluntarily and

expressly waive[s] [his] right to appeal any sentence imposed . . . and the manner

in which the sentence is determined, on any of the grounds set forth in [18 U.S.C.

§ 3742] or on any ground whatever, except . . . [for] a sentence (1) above the

*
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 This order and judgment is not binding precedent, except under the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.
maximum penalty provided in the statutes of conviction as set forth in [the

agreement]; (2) an upward departure above the high end of the Guideline range

determined by the Court to apply to [him] and the facts of [his] case; or (3) if the

Court fails to apply the two-level ‘fast track’ reduction recommended by the

government.” Statement by Def. in A dvance of Plea of G uilty (Plea A greement),

at 3; see Change of Plea Tr. at 14-15 (reflecting defendant’s oral confirmation of

waiver in Plea A greement). Consistent with the unchallenged presentence report

and the government’s recommendation for the two-level fast-track reduction, the

district court determined a guideline range of 24 to 30 months and imposed a

sentence of 30 months, well within the 20-year statutory maximum recited in the

plea agreement. Defendant appealed and the government has moved to enforce

his appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)

(en banc). W e grant the motion and dismiss the appeal.

Under Hahn, 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 enforcing the waiver

would result in a miscarriage of justice.” Id. at 1325. The miscarriage-of-justice

prong requires the defendant to show (a) his sentence relied on an impermissible

factor such as race; (b) ineffective assistance of counsel in connection with the

negotiation of the appeal waiver rendered the waiver invalid; (c) his sentence

exceeded the statutory maximum; or (d) his appeal waiver is otherwise unlaw ful.

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Id. at 1327. The government’s motion addresses all of these considerations,

explaining why none of them undermine defendant’s appeal waiver. Upon review

of the pertinent plea and sentencing materials, we agree.

Defendant “does not dispute that his plea, along with his waiver of appeal

rights, was knowingly and voluntarily entered” and that “[t]his appeal falls within

the terms of the appeal waiver he accepted in exchange for . . . promises in th[e]

plea agreement.” M emo. in O pposition to M otion to Dismiss, at 1. His only

argument in response to the government’s motion is that “a miscarriage of justice

will occur if this appeal is dismissed . . . because of the lengthy sentence of 30

months.” Id. at 2. He objects that the sentence “was based solely upon the

district court’s adoption of the sentencing guideline recommendation, without

significant explicit consideration of other sentencing factors listed in 18 U.S.C.

[§ 3553], including the facts [that] . . . [he] is a parent of three children who live

in this country, and has not had any criminal history since 2002.” M emo. in

Opposition to M otion to Dismiss at 2.

Such sentencing objections, however, do not establish that enforcement of

the appeal waiver would be unlawful, which is the focus of the

miscarriage-of-justice inquiry. See Hahn, 359 F.3d at 1329. Unless undercut by

an error that “seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings,” an appeal waiver is enforceable. Id. at 1327. No such

error has been raised here.

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 The government’s motion is GRANTED and the appeal is DISM ISSED.

The mandate shall issue forthwith.

ENTERED FOR THE COURT
PER CURIAM

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