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

                            FOR THE TENTH CIRCUIT                          November 9, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-2123
                                                   (D.C. No. 2:18-CR-01029-WJ-1)
 MANUEL ESPINOZA-TALAMANTES,                                  (D. N.M.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before TYMKOVICH, Chief Judge, HOLMES and McHUGH, Circuit Judges.
                 _________________________________

      Following his acceptance of a plea agreement that included a waiver of his

right to appeal, Manuel Espinoza-Talamantes pleaded guilty to re-entry of a removed

alien in violation of 8 U.S.C. § 1326(a) and (b). He was sentenced to 42 months’

imprisonment. Despite the waiver, he appealed. The government has moved to

enforce the appeal waiver. See United States v. Hahn, 

, 1328

(10th Cir. 2004) (en banc) (per curiam).

      In evaluating a motion to enforce a waiver, we consider: “(1) whether the

disputed appeal falls within the scope of the waiver of appellate rights; (2) whether



      *
         This order and judgment is not binding precedent, except under the doctrines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 defendant knowingly and voluntarily waived his appellate rights; and (3) whether

enforcing the waiver would result in a miscarriage of justice.” 

Espinoza-Talamantes’ counsel has filed a response in which he says that he “does not

have a good faith legal or factual basis to contest the government’s [m]otion.”

Resp. at 1.

      Our independent review confirms that the proposed issue for appeal (identified

as an appeal of his sentence in Espinoza-Talamantes’ Docketing Statement) falls

within the scope of his waiver. The plea agreement clearly sets forth the waiver and

states that it was knowing and voluntary, and the district court discussed the waiver

and voluntariness at the plea hearing. There is no contradictory evidence indicating

that Espinoza-Talamantes 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 defined in 

.

      The motion to enforce is granted and the appeal is dismissed.


                                            Entered for the Court
                                            Per Curiam




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