Filed: Jun. 05, 2018
Latest Update: Mar. 03, 2020
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT June 5, 2018 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 17-3277 (D.C. No. 5:16-CR-40115-DDC-1) ALFONSO SOTO, (D. Kan.) Defendant - Appellant. _ ORDER AND JUDGMENT* _ Before HARTZ, O’BRIEN, and MORITZ, Circuit Judges. _ After accepting a plea agreement that included a waiver of his right to appeal, Alfonso Soto pleaded guilty to conspiracy to p
Summary: FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT June 5, 2018 _ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 17-3277 (D.C. No. 5:16-CR-40115-DDC-1) ALFONSO SOTO, (D. Kan.) Defendant - Appellant. _ ORDER AND JUDGMENT* _ Before HARTZ, O’BRIEN, and MORITZ, Circuit Judges. _ After accepting a plea agreement that included a waiver of his right to appeal, Alfonso Soto pleaded guilty to conspiracy to po..
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 5, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3277
(D.C. No. 5:16-CR-40115-DDC-1)
ALFONSO SOTO, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, O’BRIEN, and MORITZ, Circuit Judges.
_________________________________
After accepting a plea agreement that included a waiver of his right to appeal,
Alfonso Soto pleaded guilty to conspiracy to possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A).
Notwithstanding the appeal waiver, he appealed. The government now has moved to
enforce the waiver. See United States v. Hahn,
359 F.3d 1315, 1328 (10th Cir. 2004)
(en banc) (per curiam).
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
*
This order and judgment is not binding precedent, except under the doctrines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.
result in a miscarriage of justice.”
Id. at 1325. Mr. Soto’s counsel has filed a
response stating he cannot find any meritorious grounds on which to oppose the
government’s motion. We gave Mr. Soto the opportunity to file a pro se response,
but his deadline has passed, and as of today’s date, we have not received anything
from him.
Our independent review confirms that the proposed issues for appeal fall
within the scope of the waiver. In Mr. Soto’s docketing statement, he identifies
issues concerning the length of his sentence.
The plea agreement clearly sets forth the waiver and states that it was knowing
and voluntary. The district court discussed the waiver at the plea hearing and found
that Mr. Soto’s decision to plead guilty was informed, knowing, and voluntary.
There is no contradictory evidence indicating that Mr. Soto did not knowingly and
voluntarily accept the waiver. Finally, there is no indication that enforcing the
waiver would result in a miscarriage of justice as that term is defined in
Hahn,
359 F.3d at 1327.
The motion to enforce is granted and this matter is dismissed.
Entered for the Court
Per Curiam
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