                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 23, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                        No. 11-3041
    v.                                        (D.C. No. 5:09-CR-40041-JAR-2)
                                                          (D. Kan.)
    ALFONSO RUBIO-AYALA,
    a/k/a Paisa, a/k/a Poncho,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, MURPHY, and HOLMES, Circuit Judges.



         The government has moved to enforce the plea agreement it entered into

with Alfonso Rubio-Ayala. Mr. Rubio-Ayala pleaded guilty, pursuant to a plea

agreement, to conspiracy to possess with intent to distribute 500 or more grams of

methamphetamine in violation of 21 U.S.C. § 846, with reference to 21 U.S.C.

§ 841(b)(1)(A) and 18 U.S.C. § 2. Under the terms of the plea agreement, he


*
      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 This order and judgment is not binding precedent, except under the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.
waived his right to appeal any matter concerning his prosecution, conviction, or

sentence, if the sentence imposed by the district court was within the guideline

range determined by the court to be appropriate. The court sentenced

Mr. Rubio-Ayala to life imprisonment, the maximum sentence under the guideline

range. Despite the appeal waiver contained in the plea agreement, he filed a

notice of appeal.

      The government moved to enforce the appeal waiver pursuant to United

States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Hahn

requires enforcement of an appeal waiver if (1) “the disputed appeal falls within

the scope of the waiver of appellate rights”; (2) Mr. Rubio-Ayala “knowingly and

voluntarily waived his appellate rights”; and (3) “enforcing the waiver would

[not] result in a miscarriage of justice.” Id. at 1325.

      In responding to the government’s motion to enforce, Mr. Rubio-Ayala’s

court-appointed counsel essentially conceded the Hahn factors.

Mr. Rubio-Ayala’s family and/or friends, however, secured retained counsel, who

filed a motion to strike this response and for permission to file a new response

within no less than thirty days from the date of an order striking the initial

response. Reserving a ruling on the motion to strike, we granted retained

counsel’s request to file a new response within thirty days. 1 And we later granted

1
     Counsel represented that with a deadline of no less then thirty days, he
would confer with Mr. Rubio-Ayala, completely review the record, and prepare
                                                                     (continued...)

                                          -2-
court-appointed counsel’s motion to withdraw. Through retained counsel,

Mr. Rubio-Ayala filed a second response.

      In that response, Mr. Rubio-Ayala initially argues that the motion to

enforce is premature. He contends that retained counsel had not had time to

obtain or review the record and, after counsel does so, he may want to make

arguments concerning the Hahn factors. Mr. Rubio-Ayala believes that he should

be able to raise in his appellate brief any challenges to the appeal waiver itself or

to the knowingness and intelligence of the plea and an assertion that a miscarriage

of justice has occurred. We reject this argument. One purpose of an appellate

waiver is to save the government from the cost of prosecuting an appeal. See

Hahn, 359 F.3d at 1325. To declare the motion premature goes against that

purpose, as well as Tenth Circuit Rule 27.2(A)(1)(d), which permits a motion to

enforce an appeal waiver, and Hahn’s ruling that the government is not required

to brief an appeal until after its motion to enforce is ruled upon, Hahn, 359 F.3d

at 1328. Thus, the government’s motion to enforce the appeal waiver does not

prematurely seek to resolve this appeal. Counsel’s failure to obtain or review the

record does not make the government’s motion to enforce premature.




1
 (...continued)
and file a new response.

                                          -3-
      Next, Mr. Rubio-Ayala argues that the plea agreement is conflicting and

ambiguous as to whether he waived his right to challenge his conviction. The

appeal waiver, in relevant part, states:

            The defendant knowingly and voluntarily waives any right to
      appeal or collaterally attack any matter in connection with this
      prosecution, the defendant’s conviction, or the components of the
      sentence to be imposed herein including the length and conditions of
      supervised release. The defendant is aware that Title 18, U.S.C.
      § 3742 affords a defendant the right to appeal the conviction and
      sentenced imposed. By entering into this agreement, the defendant
      knowingly waives any right to appeal a sentence imposed which is
      within the guideline range determined appropriate by the court. The
      defendant also waives any right to challenge a sentence or otherwise
      attempt to modify or change his sentence or manner in which it was
      determined in any collateral attack . . . . In other words, the
      defendant waives the right to appeal the sentence imposed in this
      case except to the extent, if any, the court departs upwards from the
      applicable sentencing guideline range determined by the court.

Plea Agreement at 10. Mr. Rubio-Ayala contends that although the initial

sentence mentions waiver of his right to appeal his conviction and sentence and

the second sentence notes the rights he is waiving, including his right to appeal

his conviction and sentence, the remainder of the language only addresses a

waiver of his right to appeal his sentence. According to Mr. Rubio-Ayala, this

ambiguous language should be construed against the government and he should be

allowed to challenge his guilty plea on due process or Federal Rule of Criminal

Procedure 11 grounds. Contrary to Mr. Rubio-Ayala’s assertion, however, we

conclude that the language is not ambiguous, as it clearly states that he waived his




                                           -4-
right to challenge his conviction and sentence on appeal. Thus, we conclude that

this appeal falls within the scope of the appeal waiver.

      Mr. Rubio-Ayala fails to make any specific argument concerning the

second and third Hahn prongs. Nonetheless, we have examined the relevant parts

of the record, and we summarily dispose of this appeal and the motion to enforce.

See 10th Cir. R. 27.2(B).

      Our review of the plea agreement and the change of plea hearing transcript

convinces us that Mr. Rubio-Ayala entered into the plea agreement knowingly and

voluntarily. See Hahn, 359 F.3d at 1325 (in deciding whether defendant entered

plea knowingly and voluntarily, this court considers “whether the language of the

plea agreement states that the defendant entered the agreement knowingly and

voluntarily” and whether there was adequate Rule 11 colloquy). The plea

agreement states that he “knowingly and voluntarily waives any right to appeal”

his conviction or sentence. Plea Agreement at 10. Further, the agreement

indicates that he read it, understood it, and agreed that it was accurate, and that he

had sufficient time to discuss the case with his attorney. Id. at 13. He admitted

that he was guilty and entered into the plea agreement freely and voluntarily. Id.

at 14. At the change of plea hearing, Mr. Rubio-Ayala testified that he

understood the terms of the plea agreement, it was his decision to enter into the

plea agreement, and he made that decision of his own will. Change of Plea Hr’g

Tr. at 11, 14. He agreed that he had waived his appellate rights to attack his

                                          -5-
prosecution, conviction, and sentence, with one exception regarding his sentence.

Id. at 15, 16.

       Likewise, our review of the relevant parts of the record convinces us that

there was no miscarriage of justice. A miscarriage of justice results 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 otherwise unlawful.” Hahn, 359 F.3d at 1327 (quotation marks

omitted). The district court did not rely on an impermissible factor such as race;

there is no assertion of ineffective assistance of counsel with respect to

negotiation of the plea agreement, Mr. Rubio-Ayala’s life sentence did not exceed

the statutory maximum of life imprisonment, and nothing indicates the waiver

was otherwise unlawful.

       Accordingly, the motion to enforce is GRANTED, and this appeal is

DISMISSED. Mr. Rubio-Ayala’s motion to strike the initial response is

GRANTED.


                                        ENTERED FOR THE COURT
                                        PER CURIAM




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