FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 11, 2014
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-6211
(D.C. No. 5:10-CR-00281-F-1)
ALBERTO GOMEZ-GOMEZ, (W.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, EBEL, and O’BRIEN, Circuit Judges.
After accepting a plea agreement that included a waiver of his right to appeal,
Alberto Gomez-Gomez pleaded guilty to one count of conspiracy to possess with
intent to distribute and to distribute methamphetamine, 21 U.S.C. § 846, and one
count of reentry of a removed alien, 8 U.S.C. § 1326(a). He was sentenced to
concurrent terms of 240 months’ imprisonment for each offense, to be followed by a
*
This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
period of supervised release. Despite the waiver, he appealed. The government has
moved to enforce the appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328
(10th Cir. 2004) (en banc) (per curiam).
Mr. Gomez contends that the plea agreement should not be enforced for two
reasons: (1) the government breached the plea agreement—or otherwise acted
unconstitutionally—by failing to ask the district court to vary or depart below the
mandatory minimum sentence on the conspiracy count; and (2) the twenty-year
mandatory minimum sentence is unconstitutional because it relied on a prior
aggravated felony that was not alleged in the indictment, submitted to a jury, and
found beyond a reasonable doubt.
Having examined the parties’ submissions and the applicable law, we conclude
that Mr. Gomez has failed to show that the government breached the plea agreement
or acted unconstitutionally. He has also failed to demonstrate that the twenty-year
mandatory minimum sentence was unconstitutional in his case.
The motion to enforce is therefore granted, and this appeal is dismissed.
Mr. Gomez’s motion to seal his response to the government’s motion is granted.
Entered for the Court
Per Curiam
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