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

                             FOR THE TENTH CIRCUIT                            April 3, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-4010
                                                  (D.C. No. 1:15-CR-00054-JNP-1)
JUAN ANTONIO CUBILLAS,                                        (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, O’BRIEN, and PHILLIPS, Circuit Judges.
                   _________________________________

      Juan Antonio Cubillas pled guilty to one count of reentry of a previously

removed alien, in violation of 8 U.S.C. § 1326. Mr. Cubillas’ plea agreement

contained a broad waiver of his rights to appeal or collaterally attack his sentence.

Despite this waiver, Mr. Cubillas seeks to appeal from the district court’s denial of a

motion he filed related to a sentencing determination. The government has filed a

motion seeking to enforce the waiver in Mr. Cubillas’ plea agreement under United

States v. Hahn, 

(10th Cir. 2004) (en banc) (per curiam). We grant the

government’s motion and dismiss the appeal.



      *
         This order and judgment is not binding precedent, except under the doctrines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.
      The district court sentenced Mr. Cubillas to 40 months in prison. This

sentence was within the advisory guidelines range of 37 to 46 months. Mr. Cubillas’

federal sentence made no reference to any state sentence and, as a result, did not

specify whether his federal sentence was to run concurrent with or consecutive to any

state sentence.

      Over a year after sentencing, Mr. Cubillas filed a “Motion for Clarification

and/or Request for Recommendation to the Bureau of Prisons.” R. at 32. In his

motion, Mr. Cubillas explained that he had been unsuccessful in having the Bureau of

Prisons (BOP) credit the time he spent in state custody on a drug charge towards his

federal sentence. He argued that the BOP’s failure to award him “prior jail

credits . . . result[ed] in the lengthening of [his] sentence beyond the terms of

imprisonment imposed by the federal court.” R. at 34. He therefore requested that

the district court issue an order clarifying that his federal and state sentences should

run concurrently. Alternatively, he requested that the district court issue a

recommendation to the BOP “supporting a nunc pro tunc designation so that he may

receive credit against his federal sentence for the time spent in the state of Utah’s

custody.” 

      The district court denied the motion for clarification, explaining that “there

was no ambiguity in the sentence requiring clarification” because “[t]he issue was

never raised and the court never addressed it.” 

The court also denied

Mr. Cubillas’ alternative request that it recommend that the two sentences run

concurrently. Mr. Cubillas seeks to appeal the district court’s denial of his motion,

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but the government asserts that the appeal is barred by the terms of the waiver in the

plea agreement.

       Under 

, we consider the following three factors in

determining whether to enforce a waiver in a plea agreement: (1) does the disputed

appeal fall within the scope of the waiver; (2) was the waiver knowing and voluntary;

and (3) would enforcing the waiver result in a miscarriage of justice. Mr. Cubillas’

sole argument is that his appeal is outside of the scope of the waiver in his plea

agreement. Because he does not contest that his waiver was knowing and voluntary

and he does not assert that enforcing the waiver would result in a miscarriage of

justice, we need not address those factors. See United States v. Porter, 

, 1143 (10th Cir. 2005).

       Under the terms of Mr. Cubillas’ plea agreement, he waived his right “to

appeal any sentence imposed upon me, and the manner in which the sentence is

determined,” except for certain situations not applicable here. Mot. to Enforce,

Attach. A at 3. He also waived his “right to challenge [his] sentence, and the manner

in which the sentence is determined, in any collateral review motion, writ or other

procedure . . . .” 

He further understood and agreed “that the word

‘sentence’ . . . is being used broadly, and applies to all aspects of the Court’s

sentencing authority . . . .” 

argues that his claim is beyond the scope of the plea agreement

because he is not challenging his sentence. But he is in fact challenging a specific

component of his sentence by seeking to have the district court “clarify” or amend his

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sentence to direct that his federal sentence should run concurrent with his previously

imposed state sentence. This challenge falls within the sentencing authority of the

district court because it had the discretion to order his federal and state sentences to

run concurrently. See United States v. Williams, 

, 58 (10th Cir. 1995)

(“Whether to impose a consecutive or concurrent sentence is a matter within the

discretion of the district court.”); see also 18 U.S.C. § 3584(a) (“Multiple terms of

imprisonment imposed at different times run consecutively unless the court orders

that the terms are to run concurrently.”). And, in 

, we held

that a challenge regarding the district court’s failure to exercise its discretion to

impose a sentence concurrent to another federal sentence fell within the scope of the

general waiver related to sentencing matters.

       For the foregoing reasons, we conclude that Mr. Cubillas’ appeal falls within

the scope of the waiver in his plea agreement. Accordingly, we grant the

government’s motion to enforce and dismiss this appeal.


                                             Entered for the Court
                                             Per Curiam




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