FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 5, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-3251
(D.C. No. 6:11-CR-10178-MLB-6)
JUAN LUIS PEREZ-OLIVAREZ, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before LUCERO, EBEL, and MATHESON, Circuit Judges.
This matter is before the court on the motion of the United States to enforce
the waiver of appellate rights contained in the plea agreement executed by
defendant-appellant Juan Luis Perez-Olivarez. We grant the government’s motion
and dismiss the appeal.
*
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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
Mr. Perez-Olivarez pled guilty pursuant to a written plea agreement to one
count of using a communication device to facilitate a conspiracy to distribute
cocaine. The district court sentenced him to 48 months’ imprisonment, which was
below the applicable sentencing guideline range, but was the maximum sentence
permitted by statute.
As part of his plea agreement, Mr. Perez-Olivarez “knowingly and voluntarily
waive[d] any right to appeal or collaterally attack any matter in connection with this
prosecution, the defendant’s conviction, or the components of the sentence to be
imposed herein including the length and conditions of supervised release.” Plea
Agreement at 5. More specifically, he waived the right to appeal any sentence
imposed within the guideline range and retained only the right to appeal his sentence
if the district court departed upward from the guideline range. See id. at 5-6. Despite
this waiver, Mr. Perez-Olivarez filed this appeal to challenge his sentence as
procedurally and substantively unreasonable. The government has filed the current
motion to enforce the waiver and dismiss the appeal in accordance with United States
v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).
We will enforce an appeal waiver as long as three elements are met: (1) “the
disputed appeal falls within the scope of the waiver of appellate rights”; (2) “the
defendant knowingly and voluntarily waived his appellate rights”; and (3) “enforcing
the waiver will [not] result in a miscarriage of justice.” Id. 1325. In his response to
the government’s motion to enforce, Mr. Perez-Olivarez, through his counsel,
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concedes that all these elements are met and that his appeal waiver is enforceable.
Our own review of the plea agreement, statement in advance of plea, and transcripts
of the plea and sentencing hearings leads us to the same conclusion.
We therefore grant the government’s motion to enforce and dismiss the appeal.
Entered for the Court
Per Curiam
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