NOT PRECEDENTIAL


  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            _____________

            Nos. 07-4683, 08-4661
              _____________

      UNITED STATES OF AMERICA

                       v.

            EDWIN MOLINA, JR.
                      Appellant in No. 07-4683

                    ___
                 __________

      UNITED STATES OF AMERICA

                       v.

            KEVIN T. ORTEGA,
                       Appellant in No. 08-4661


               _____________

On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
 (D.C. Criminal Nos. 05-cr-00670-6 [Molina]
                   and 05-cr-00670-2 [Ortega] )
District Judge: Honorable James Knoll Gardner
                _____________
                       Submitted Under Third Circuit LAR 34.1(a)
                                  on March 26, 2010

                  Before: RENDELL AND FUENTES, Circuit Judges,
                           and KUGLER,* District Judge.

                                 (Filed: March 31, 2010)
                                       __________

                               OPINION OF THE COURT
                                     __________

RENDELL, Circuit Judge.

       Kevin Ortega and Edwin Molina are co-defendants who pled guilty to conspiring

to distribute cocaine base. On appeal, Ortega challenges the District Court’s denial of his

motion to withdraw his guilty plea and Molina challenges the District Court’s calculation

of his sentencing guidelines. In the middle of their trial, both Ortega and Molina entered

into plea agreements with the government that contained identical appellate waivers. The

waivers bar all claims on appeal except those contending that (1) the defendant’s sentence

exceeds the statutory maximum; (2) the sentencing judge erroneously departed upward

from the sentencing guidelines; or (3) the sentencing judge imposed an unreasonable

sentence above the sentencing guideline range. On appeal, neither defendant mentions,




__________________

    * Honorable Robert B. Kugler, Judge of the United States District Court for
      the District of New Jersey, sitting by designation.




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let alone challenges, the waiver, nor do they explain how their challenges fall within an

exception to the waiver.

       Molina contests the District Court’s calculation of his sentencing guideline range,

specifically the Court’s application of a 2-point enhancement for obstruction of justice.

Molina’s challenge is undoubtedly covered by the appellate waiver, as the waiver

precludes appeals brought under 18 U.S.C. § 3742. See United States v. Price, 

, 284 (3d Cir. 2009). Molina does not contend that the waiver was not knowing and

voluntary, that enforcing the waiver would result in a miscarriage of justice, or that his

challenge to the District Court’s calculation of the guidelines falls under one of the three

exceptions to the waiver. Molina’s claim is thus unreviewable on appeal. We will

enforce the waiver of appeal and AFFIRM Molina’s sentence.

       Ortega contends that the District Court abused its discretion in denying his motion

to withdraw his guilty plea. He asserts that we have jurisdiction to hear this appeal under

18 U.S.C. § 3742 and 28 U.S.C. § 1291. However, the appellate waiver in his plea

agreement specifically states that he waives all rights to appeal or collaterally attack his

conviction or sentence under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. Like Molina,

Ortega makes no argument as to why this waiver does not apply. Therefore, we also

decline to reach the merits of Ortega’s argument and will AFFIRM his conviction and

sentence.




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