FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 10, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-1251
(D.C. No. 1:16-CR-00330-PAB-1)
RICARDO ESTEVAN SUAZO, (D. Colo.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before BRISCOE, HARTZ, and MORITZ, Circuit Judges.
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After entering into a plea agreement that included a broad waiver of his
appellate rights, defendant Ricardo Estevan Suazo pled guilty to conspiracy to use
interstate commerce facilities in the commission of murder-for-hire in violation of
18 U.S.C. § 1958(a). The district court accepted his plea and sentenced him to
108 months (nine years) in prison, which was less than the 10-year maximum.
Despite the appeal waiver, defendant has appealed the district court’s
judgment. The government has moved to enforce the waiver under United States v.
Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Discerning no
meritorious issues for appeal, defendant’s attorney filed an Anders brief and a motion
*
This order and judgment is not binding precedent, except under the doctrines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.
for leave to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967) (defense
counsel may “request permission to withdraw” when counsel conscientiously
examines a case and determines that an appeal would be “wholly frivolous”). As
required by Anders, defense counsel advised defendant of his position. In addition,
the Clerk of Court notified defendant of his attorney’s position and gave him 30 days
to respond or request more time. Defendant has neither responded nor requested
more time to respond.
After independently and thoroughly examining the record per Anders, see id.,
we agree with the government and defense counsel that defendant’s appeal waiver
was valid. Hahn instructs us to enforce appeal waivers as long as three conditions
are met: (1) the matter on appeal falls within the scope of the waiver; (2) the
defendant knowingly and voluntarily waived his appellate rights; and (3) enforcing
the waiver will not result in a miscarriage of justice. Hahn, 359 F.3d at 1325. All
three factors support enforcing the waiver here.
First, the matter on appeal falls within the scope of the waiver, which
provides:
D. Waiver of Appeal
The defendant is aware that 18 U.S.C. § 3742 affords the right to
appeal the sentence, including the manner in which that sentence is
determined. Understanding this, and in exchange for the concessions
made by the government in this agreement, the defendant knowingly
and voluntarily waives the right to appeal any matter in connection with
this prosecution, conviction, or sentence unless it meets one of the
following criteria: (1) the sentence exceeds the maximum penalty
provided in the statute of conviction; (2) the sentence exceeds 9 years;
or (3) the government appeals the sentence imposed. If any of these
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three criteria apply, the defendant may appeal on any ground that is
properly available in an appeal that follows a guilty plea.
Mot. to Enforce, Att. 1 at 2-3. Second, the motion to enforce cites numerous excerpts
from the plea agreement and the change of plea hearing that establish defendant
knowingly and voluntarily waived his right to appeal. Finally, we see nothing to
suggest that enforcement of the appeal waiver would cause a miscarriage of justice.
Exercising our jurisdiction under 28 U.S.C. § 1291, we grant defense counsel’s
motion to withdraw and decline to appoint new counsel. 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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