FILED
United States Court of Appeals
Tenth Circuit
July 6, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 11-3083
v. (D.C. No. 5:10-CR-40032-RDR-1)
(D. Kan.)
LUCIANO ARREOLA,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before MURPHY, EBEL, and TYMKOVICH, Circuit Judges.
This matter is before the court on the government’s motion to enforce the
appeal waiver contained in defendant Luciano Arreola’s plea agreement. The
defendant pleaded guilty to possession with intent to distribute approximately
7,560 grams of methamphetamine. Pursuant to the plea agreement, the defendant
waived his right to appeal his conviction or his sentence, provided his sentence
*
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 This order and judgment is not binding precedent, except under the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.
was within the statutory maximum authorized by law and within the advisory
sentencing guideline range determined by the district court to apply. The district
court determined the advisory guideline range was 70 to 87 months’ imprisonment
and sentenced the defendant below that range, to 60 months. 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 concedes through counsel that there are no arguments
that can be presented in response to the motion to enforce. We have reviewed the
motion, the record and the defendant’s response, and we agree 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. 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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