United States v. Lopez-Rodriguez

FILED
United States Court of Appeals
Tenth Circuit

June 3, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 11-2049
v. (D.C. No. 2:10-CR-03331-LH-1)
(D. N.M.)
JOSE ISABEL LOPEZ-RODRIGUEZ,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRISCOE, Chief Judge, GORSUCH and HOLMES, Circuit Judges.

This matter is before the court on the government’s motion to enforce the

appeal waiver contained in defendant Jose Isabel Lopez-Rodriguez’s plea

agreement. The defendant pleaded guilty to conspiracy to possess with intent to

distribute 50 kilograms or more of marijuana and unlawful reentry of a previously

deported alien. Pursuant to the plea agreement, the defendant waived his right to

appeal his conviction or his sentence, provided his sentence was within 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 This order and judgment is not binding precedent, except under the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.
statutory maximum authorized by law. The defendant’s sentence of thirty-three

months’ imprisonment was well below the statutory maximum penalty of twenty

years’ imprisonment for each conviction. 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 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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