                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  November 13, 2007
                            FOR THE TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                     Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 07-3261
                                                (D.C. No. 06-CR-40130-JAR)
    GENARO ESPINOZA,                                      (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, McCONNELL, and GORSUCH, Circuit Judges.



         Defendant Genaro Espinoza pled guilty, pursuant to a plea agreement, to

one count of possession of 10.01 kilograms (24 pounds) of cocaine hydrochloride

with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Mr. Espinoza had

been charged in a two-count indictment but agreed to plead guilty to Count 2 in

return for the dismissal of Count 1. The district court sentenced Mr. Espinoza to



*
      This panel has determined unanimously 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 This order and judgment is not binding precedent, except under the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.
135 months’ imprisonment, three years’ supervised release, and the payment of a

$100 special assessment. Although his sentence was within the statutory range

and the plea agreement waived any right to appeal a sentence within the statutory

range, Mr. Espinoza filed this appeal. Thereafter, the government moved to

enforce the plea agreement under United States v. Hahn, 359 F.3d 1315 (10th Cir.

2004) (en banc) (per curiam). Mr. Espinoza has responded that the motion should

be denied because he did not understand that his sentence would be determined on

the basis of the offense conduct charged in the dismissed Count 1, as well as the

conduct in Count 2. He reasons that “[i]f he did not understand the relevant

conduct portion of the plea agreement, it follows that he did not understand the

appeal waiver, either.” Resp. to Mot. for Enfcmt. of Plea Agrmt. at 2. As

discussed below, we grant the government’s motion and dismiss the appeal.

      In Hahn, 359 F.3d at 1325, this court held that “in reviewing appeals

brought after a defendant has entered into an appeal waiver,” this court will

determine “(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 result in a

miscarriage of justice.” A miscarriage of justice will result if (1) “the district

court relied on an impermissible factor such as race”; (2) “ineffective assistance

of counsel in connection with the negotiation of the waiver renders the waiver

invalid”; (3) “the sentence exceeds the statutory maximum”; or (4) “the waiver is

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otherwise unlawful.” Id. at 1327 (quotation omitted). For an “otherwise

unlawful” waiver, the error must seriously affect the fairness, integrity, or public

reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 732

(1993); Hahn, 359 F.3d at 1327.

      The government’s motion to enforce addresses each of the three Hahn

factors. Mr. Espinoza, however, opposes the motion based only on the second

factor. Thus, we need only address whether the waiver was knowing and

voluntary. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005)

(recognizing each Hahn factor need not be addressed if defendant does not make

argument with respect to that factor).

      In determining whether Mr. Espinoza’s waiver of his right to appeal was

made knowingly and voluntarily, we consider “whether the language of the plea

agreement states that [he] entered the agreement knowingly and voluntarily” and

whether there was “an adequate Federal Rule of Civil Procedure 11 colloquy.”

Hahn, 359 F.3d at 1325. Mr. Espinoza bears the “burden to present evidence

from the record establishing that he did not understand the waiver.” Id. at 1329

(quotation omitted).

      Mr. Espinoza fails to meet his burden. The plea agreement fully set forth

the factual basis for the plea. It stated that he understood that the maximum term

of imprisonment was not less than ten years, nor more than life imprisonment,

a $4 million fine, a $100 mandatory special assessment, and not less than five

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years of supervised release, Plea Agrmt. at 1, and that there had been no promises

or representations as to what sentence the district court would impose, id. at 4.

The plea agreement further stated that Mr. Espinoza “knowingly and voluntarily

waives any right to appeal or collaterally attack any matter in connection with this

prosecution, conviction and sentence . . . except to the extent, if any, the court

departs upwards from the applicable sentencing guideline range determined by the

court.” Id. at 6.

      Specifically with regard to Mr. Espinoza’s relevant conduct, the agreement

stated that “both the United States and the defendant understand that the conduct

charged in any dismissed counts of the indictment is to be considered as well as

all other uncharged related criminal activity as relevant conduct for purposes of

calculating the offense level for Count 2.” Id. at 2-3. Mr. Espinoza signed the

agreement after acknowledging that he had read it and understood it, and that he

was entering into the agreement because he was guilty and that he was doing so

freely and voluntarily. Id. at 8.

      Likewise, at the plea colloquy, Mr. Espinoza indicated that he understood

the rights he was waiving and the terms of the plea agreement and that he was

pleading guilty voluntarily. Tr. of Change of Plea Hr’g at 5-8. He stated that

he had reviewed the plea agreement with his attorney and understood that he

was giving up his rights to appeal. Id. at 5,7. The court specifically explained to

Mr. Espinoza that the court would consider the quantity and type of drugs he had

                                          -4-
possessed in arriving at a sentence. The court expressly stated that the quantity

“would include the quantity of drugs in Count 2 of the indictment to which you’re

pleading guilty; but it would also include the quantity of drugs in Count 1.”

Id. at 13 (emphasis added). Mr. Espinoza indicated that he understood this and

also understood that the greater the quantity of drugs determined to be in his

possession, the longer the sentence would be. Id. at 14. Again, the court

explained to Mr. Espinoza that it would “be looking at everything you did in this

case,” and Mr. Espinoza indicated that he understood. Id. at 15.

      Nothing in the record suggests that Mr. Espinoza did not knowingly and

voluntarily enter into the plea agreement. He presents no record evidence

showing that he did not understand the waiver. See United States v. Edgar,

348 F.3d 867, 872-73 (10th Cir. 2003). “A mere silent record does not satisfy

this burden.” Id. at 873.

      Knowledge of the specific claims of error in sentencing is not a prerequisite

for a knowing waiver of the right to appeal the sentence. Hahn, 359 F.3d at 1326.

In deciding whether a waiver is knowing and voluntary, the focus is on the “right

relinquished” rather than on the “prospective result of the sentencing proceeding.”

Id. Therefore, Mr. Espinoza’s inability to know what the district court would do

at sentencing has no bearing on whether he knowingly and voluntarily entered

into the waiver. Accordingly, based on the language of the plea agreement and




                                         -5-
his reaffirmation of the plea agreement’s provisions during the Rule 11 colloquy,

we conclude Mr. Espinoza knowingly and voluntarily waived his right to appeal

his sentence. We therefore GRANT the government’s motion to enforce the plea

agreement and DISMISS the appeal.

                                      ENTERED FOR THE COURT
                                      PER CURIAM




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