F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     November 16, 2006
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,
                                                          No. 06-2143
    v.                                             (D.C. No. CR-05-2360-JH)
                                                           (D . N.M .)
    FELIPE VALAD EZ-PEREZ,

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before BR ISC OE, L UC ER O, and HA RTZ, Circuit Judges.




         Defendant pled guilty to one charge of reentry of a deported alien

previously convicted of an aggravated felony, in violation of 8 U.S.C.

§ 1326(a)(1) & (2) and 8 U.S.C. § 1326(b)(2). In the plea agreement, defendant

and the United States agreed, pursuant to Fed. R. Crim. P. 11(c)(1)(C), that

“defendant’s final adjusted sentencing guidelines offense level is nineteen (19),




*
      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 This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
and that defendant’s criminal history category will be determined by the United

States Probation Office and reflected in the presentence report prepared in this

case.” Plea Agreement at 3 (dated and filed Nov. 1, 2005). Defendant agreed

“that the sentence in this case shall be determined pursuant to the sentencing

guidelines, using the offense level agreed upon in this plea agreement, and

applying the criminal history category determined by the Court after review of the

presentence report.” 

“knowingly waive[d] the right to appeal

any sentence within the statutory range applicable to the statute(s) of conviction.”

       In sentencing defendant, the district court accepted the plea agreement’s

stipulated offense level of 19 and, after listening to the parties’ respective

arguments, it also accepted the criminal history category calculation set forth in

the presentence report, which was a category of IV . See Tr. of Sentencing Hrg. at

11. These two factors yielded a guideline sentencing range of 46 to 57 months.

The district court sentenced defendant to a term of 46 months’ incarceration,

followed by a three-year term of unsupervised release. The court declined to

impose a fine, but it did impose a special assessment of $100.00. The court found

the sentence to be reasonable under 18 U.S.C. § 3742(A). As defendant

acknowledged in the plea agreement, the maximum sentence the court could have

imposed under the applicable statute was up to 20 years’ imprisonment, a

mandatory term of not more than three years’ supervised release, a fine not to

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exceed $250,000, and a special penalty assessment of $100.00. See Plea

Agreement at 2.

      Notwithstanding the appeal waiver in his plea agreement, defendant

appealed. The government has moved to enforce the appeal waiver under United

States v. Hahn, 

(10th Cir. 2004) (en banc). For reasons explained

below, we grant the motion 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 his appellate rights; and (3) whether enforcing the waiver

would result in a miscarriage of justice.” 

The miscarriage-of-justice

prong requires the defendant to show (a) his sentence relied on an impermissible

factor such as race; (b) ineffective assistance of counsel in connection with the

negotiation of the appeal waiver rendered the waiver invalid; (c) his sentence

exceeded the statutory maximum; or (d) his appeal waiver is otherwise unlaw ful.

The government’s motion addresses these considerations, explaining

why none of them undermines defendant’s appeal waiver. Upon review of the

pertinent plea and sentencing materials, we agree.

      In response to the government’s motion, defendant’s counsel “agree[d] with

the government’s contention that the defendant waived his right to appeal the

sentence in this case pursuant to the 11(c)(1)(C) plea agreement that was entered

into by the parties,” stated that he did not have “a legitimate basis for contesting

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the government’s M otion,” and noted his intent to submit a brief pursuant to

Anders v. California, 

(1967), and to seek leave to withdraw should

the appeal go forward. Response to Government’s M otion for Enforcement of

Plea Agreement at 2. Subsequently, this court provided defendant with copies of

the government’s motion and counsel’s response and gave him the opportunity to

argue why this appeal should be heard despite his appeal waiver. He did not

respond.

      W e have carefully reviewed the plea agreement and the transcript of the

hearing at which defendant entered his guilty plea. W e conclude that the Hahn

factors have been satisfied.

      Accordingly, we GRANT the government’s motion to enforce the plea

agreement and DISM ISS the appeal. The mandate shall issue forthwith.



                                      ENTERED FOR THE COURT
                                      PER CURIAM




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