FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 14, 2012
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-2046
(D.C. No. 1:10-CR-01926-BB-1)
BEATRIZ ADRIANA (D. N.M.)
CARDENAS-URIARTE,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before O’BRIEN, TYMKOVICH, and GORSUCH, Circuit Judges.
Beatriz Adriana Cardenas-Uriarte pleaded guilty to conspiracy and multiple
counts of distributing more than fifty grams of methamphetamine. 21 U.S.C. §§ 846,
841(a)(1), and 18 U.S.C. § 2. She was sentenced to 144 months in prison, which was
below her advisory guideline range. Although she waived her appellate rights as part
of her plea agreement, Ms. Cardenas-Uriarte filed an appeal challenging her
*
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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
sentence. The government has since moved to enforce the appeal waiver pursuant to
United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).
Ms. Cardenas-Uriarte responded that enforcing her appeal waiver would result in a
miscarriage of justice because her sentence was wrongfully enhanced pursuant to
U.S.S.G. § 2D1.1(b)(1). We disagree and accordingly grant the government’s motion
to enforce the appeal waiver 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 [her] 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) “the district court relied on an impermissible
factor, such as race”; (b) “ineffective assistance of counsel in connection with the
negotiation of the waiver rendered the waiver invalid”; (c) her “sentence exceeds the
statutory maximum”; or (d) her appeal “waiver is otherwise unlawful” and the error
“seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.
Id. at 1327 (quotation omitted).
The only basis upon which Ms. Cardenas-Uriarte contests her appeal waiver is
the miscarriage-of-justice prong. See United States v. Porter, 405 F.3d 1136, 1143
(10th Cir. 2005) (declining to consider uncontested factor). She argues that enforcing
her appeal waiver would result in a miscarriage of justice because the waiver is
otherwise unlawful. In particular, she refers us to U.S.S.G. § 2D1.1(b)(1), under
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which her sentence was enhanced for possession of a dangerous weapon, and asserts
the district court wrongly applied the enhancement because the disputed firearm was
likely kept for protection by a government witness. She argues that this sentencing
error resulted from the government’s failure to show that she possessed the firearm as
required by § 2D1.1(b)(1). The problem with this argument, however, is that it is
foreclosed by our precedent. Indeed, we have explained that in considering whether
an appeal waiver is “otherwise unlawful,” we look only “to whether the waiver
[itself] is otherwise unlawful,” not to whether there was a sentencing error. United
States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007) (quotation omitted). The
rationale is simple: the alleged error would invalidate the appeal waiver “based on
the very sort of claim it was intended to waive.” Id. Because Ms. Cardenas-Uriarte
advances no argument impeaching the waiver itself, she fails to show a miscarriage
of justice.
Accordingly, we GRANT the government’s motion to enforce the appeal
waiver and DISMISS the appeal.
Entered for the Court
Per Curiam
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