FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        January 9, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                        No. 13-1305
                                                (D.C. No. 1:11-CR-00033-REB-3)
NANCY MARCELA CASTRO-MOTTA,                                 (D. Colo.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before HOLMES, BACHARACH, and PHILLIPS, Circuit Judges.


      After entering into a plea agreement including a waiver of her right to appeal,

Nancy Marcela Castro-Motta pleaded guilty to conspiracy to possess with intent to

distribute and to distribute 50 grams or more of methamphetamine or 500 grams or

more of a mixture or substance containing a detectable amount of methamphetamine

in violation of 21 U.S.C. § 846 and § 841(a)(1), (b)(1)(A)(viii). The district court


*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
imposed a sentence of 168 months’ imprisonment, well within the limits specified in

the plea agreement for a sentence that would be subject to the appeal waiver.

Ms. Castro-Motta nevertheless commenced this appeal, indicating that she intended

to challenge her sentence by arguing that the district court abused its discretion in

applying the provisions of 18 U.S.C. § 3553 and the sentencing guidelines.

See Docketing Statement filed July 18, 2013, at 4. The government has moved to

enforce the appeal waiver. We now grant the motion and dismiss the appeal.

      The government’s motion explains that Ms. Castro-Motta’s appeal falls within

the scope of the appeal waiver, that the waiver was knowing and voluntary, and that

there are no circumstances to suggest a miscarriage of justice to excuse the waiver.

See generally United States v. Hahn, 

, 1325 (10th Cir. 2004) (en banc)

(per curiam) (summarizing three components of court’s inquiry when enforcing

appeal waiver). In response to the motion, Ms. Castro-Motta states that “after

conferring with counsel and in light of the matters set forth in the government’s

motion, [she] does not object to the enforcement of the waiver and dismissal of her

sentencing appeal.” Resp. to Mot. to Enforce Appeal Waiver (Resp.), at 1.

Considering the content of the government’s motion and Ms. Castro-Motta’s express

disavowal of any objection thereto, we see no basis for denying the motion.

      We note Ms. Castro-Motta also states that “[i]n not objecting [to the motion to

enforce the appeal waiver], however, [she] does not waive her right to file a petition

for writ of habeas corpus pursuant to 28 U.S.C. § 2255, as contemplated by law and


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permitted by the parties’ plea agreement.” Resp. at 1. The plea agreement generally

waives Ms. Castro-Motta’s right to pursue relief under § 2255, but an exemption

from that waiver is made for three clearly delineated circumstances: where “(1) there

is an explicitly retroactive change in the applicable guidelines or sentencing statute,

(2) there is a claim that the defendant was denied the effective assistance of counsel,

and (3) there is a claim of prosecutorial misconduct.” Dist. Ct. Doc. 451, at 5. The

instant order granting the government’s motion to enforce the appeal waiver is not

intended to carry any consequences or implications for the operation and enforcement

of this distinct waiver provision relating to § 2255 relief.

      The government’s motion to enforce the appeal waiver is granted and the

appeal is dismissed accordingly.


                                                 Entered for the Court
                                                 Per Curiam




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