FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 15, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 11-6204
                                                (D.C. No. 5:10-CR-00281-F-7)
    FERNANDO ESTRELLA,                                  (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before O’BRIEN, EBEL, and MATHESON, Circuit Judges.



         This matter is before the court on the government’s motion to enforce the

appeal waiver contained in defendant Fernando Estrella’s plea agreement. The

defendant pleaded guilty to one count of possession with intent to distribute

methamphetamine and one count of being an illegal alien in possession of a

firearm. The district court sentenced defendant to 168 months’ imprisonment.



*
      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 This order and judgment is not binding precedent, except under the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.
This sentence was below the statutory maximum sentence of life imprisonment

and at the low end of the 168- to 120-month advisory guideline range determined

by the district court.

      In his plea agreement, the defendant “knowingly and voluntarily waive[d]

his right” to “[a]ppeal or collaterally challenge his guilty plea, sentence and

restitution imposed, and any other aspect of his conviction” and his right to

“[a]ppeal [or] collaterally challenge . . . his sentence as imposed by the Court and

the manner in which the sentence is determined, provided the sentence is within

or below the advisory guideline determined by the Court to apply to this case.”

Mot. to Enforce, Att. 1 (Plea Agreement) at 9. Despite this waiver, the defendant

filed a notice of appeal, seeking to challenge his sentence. The government has

moved to enforce the appeal waiver under United States v. Hahn, 

(10th Cir. 2004) (en banc) (per curiam). We grant the government’s motion and

dismiss the appeal.

      Hahn requires enforcement of an appeal waiver if (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 would [not] result in a miscarriage of justice.” 

A miscarriage

of justice will result if (1) “the district court relied on an impermissible factor

such as race”; (2) “ineffective assistance of counsel in connection with the

negotiation of the waiver renders the waiver invalid”; (3) “the sentence exceeds

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the statutory maximum”; or (4) “the waiver is otherwise unlawful.” 

(quotations omitted).

      The defendant concedes that his appeal is within the scope of the appeal

waiver and that he knowingly and voluntarily waived his appellate rights. He

contends, however, that it would be a miscarriage of justice to enforce the appeal

waiver because the 168-month sentence is excessive, based on his contention that

he was only a minimal player in the drug conspiracy. The defendant’s

miscarriage-of-justice argument is simply a claim of sentencing error, and this

court has repeatedly held that alleged sentencing errors do not establish that

enforcement of the appeal waiver would be unlawful under the

miscarriage-of-justice inquiry. See United States v. Sandoval, 

,

1208 (10th Cir. 2007) (“Our inquiry is not whether the sentence is unlawful, but

whether the waiver itself is unlawful . . . .”). Thus, it is not a miscarriage of

justice to enforce the appeal waiver.

      The government’s motion is GRANTED, and the appeal is DISMISSED.



                                         ENTERED FOR THE COURT
                                         PER CURIAM




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