F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 2, 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. 06-4285
(D.C. No. 2:06-CR-30-TC)
JAM IE FRIAS-FERNA ND EZ, (D. Utah)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before O’BRIEN, T YM KOV ICH, and GORSUCH, Circuit Judges.
Defendant Jamie Frias-Fernandez pleaded 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 . . .
*
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 This order and judgment is not binding precedent, except under the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.
[for] a sentence above the maximum penalty provided in the statutes of conviction
as set forth in [the plea agreement], or 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.” M ot. to Enforce, Attach. A (Statement by Def. in Advance of Plea of
Guilty), at 3. The district court determined a Guideline range of 63 to 78 months
and imposed a sentence of 63 months, well within the 20-year statutory maximum
recited in the plea agreement and at the low-end of the Guideline range.
Nonetheless, defendant appealed and the government has now moved to enforce
defendant’s appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir.
2004) (en banc; per curiam). 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.
Id. at 1327. Defendant does not dispute that his plea, along with his waiver of
appeal rights, was knowingly and voluntarily entered or that his appeal falls
within the terms of the appeal waiver he accepted.
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Defendant first contends that the government's motion to enforce the appeal
waiver was untimely filed under 10th Cir. R. 27.2(A)(3), which provides that “[i]f
possible,” such motions “must be filed within 15 days after the notice of appeal is
filed.” The cited rule also allows for late filing “upon a showing of good cause,”
and, upon review of the government’s motion and its reply to defendant’s
response, we conclude that cause has been shown for the delayed filing here.
Defendant next contends that a miscarriage of justice will occur if this
appeal is dismissed because the fast-track plea agreement he entered denied him
his right to allocution. This claim is factually without merit. It is clear from the
record that the district court permitted defendant to speak at his sentencing
hearing to mitigate the sentence. See M ot. to Enforce, Attach. C at 2-4. Thus,
defendant w as not denied his right of allocution. See Fed. R. Crim. P.
32(i)(4)(A)(ii).
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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