FILED
United States Court of Appeals
Tenth Circuit
May 12, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 10-2276
v. (D.C. No. 2:10-CR-02099-RB-1)
(D. N.M.)
MIGUEL ANGEL
GUTIERREZ-VICENTE,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, LUCERO, and HARTZ, Circuit Judges.
This matter is before the court on the government’s motion to enforce the
appeal waiver contained in defendant Miguel Angel Gutierrez-Vicente’s plea
agreement. The defendant pleaded guilty to one count of possessing with intent
to distribute 50 kilograms and more of a substance containing marijuana and one
count of reentry of a removed alien. Pursuant to the plea agreement, 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 This order and judgment is not binding precedent, except under the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.
defendant waived his right to appeal his conviction or his sentence, provided his
sentence was within the statutory maximum authorized by law. The district court
sentenced the defendant to 46 months’ imprisonment, well below the statutory
maximum of 20 years’ imprisonment. 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’s counsel stated that there are no non-frivolous
arguments that can be presented in response to the motion to enforce, citing
Anders v. California, 386 U.S. 738, 744 (1967). This court gave the defendant an
opportunity to file a pro se response, see id., but to date, the defendant has not
filed a response to the motion to enforce.
Under Anders, we have reviewed the motion and the record and we
conclude 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 Hahn,
359 F.3d at 1325 (describing the factors this court considers when determining
whether to enforce a waiver of appellate rights).
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Accordingly, we GRANT the motion to enforce the appeal waiver and
DISMISS the appeal.
ENTERED FOR THE COURT
PER CURIAM
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