United States v. Arreola, No. 11-3083 (10th Cir. 2011)
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FILED United States Court of Appeals Tenth Circuit July 6, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 11-3083 (D.C. No. 5:10-CR-40032-RDR-1) (D. Kan.) v. 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 -2-
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