                                                                      F I L E D
                                                    United States Court of Appeals
                                                            Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                     August 31, 2006
                            FO R TH E TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                  No. 06-2085
                                                 (D.C. No. CR-05-2012-RB)
    R AU L EDWA R D VA RELA ,                            (D . N.M .)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before KELLY, BR ISC OE, and M U RPH Y, Circuit Judges.


         Defendant Raul Edward Varela pled guilty, pursuant to a plea agreement, to

possession with intent to distribute 500 grams or more of cocaine in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(B). The district court sentenced him to

eighty-four months’ imprisonment and four years’ supervised release. Although

his sentence fell beneath the statutory maximum and the plea agreement waived




*
       After examining the briefs and appellate record, 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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
any right to appeal a sentence within the statutory maximum, M r. Varela 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).

M r. Varela, who is proceeding pro se, 1 opposes the motion for the following

reasons: (1) he should have received a lesser sentence because he played only a

minor role; (2) he did not knowingly, intelligently, and voluntarily plead guilty;

(3) his counsel was ineffective; and (4) he never had an opportunity to fully

review the presentence investigation report. As discussed below, we grant the

government’s motion to enforce and dismiss the appeal.

      In Hahn, 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) w hether the defendant knowingly and voluntarily waived his appellate

rights; and (3) whether enforcing the waiver would result in a miscarriage of

justice.” Id. at 1325. A miscarriage of justice will result if (1) “the district court

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




1
       Although M r. Varela was represented by retained counsel during his district
court proceedings, he filed a pro se notice of appeal. On July 18, 2006, he filed a
letter with this court setting forth his opposition to the government’s motion to
enforce the plea agreement. We construe this letter as a response to the motion to
enforce. Because M r. Varela proceeds pro se, we liberally construe his appellate
filing. See Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).


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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.” Id. at 1327 (quotation omitted). Applying the three-part

Hahn test, w e conclude that M r. V arela’s waiver is valid and should be enforced.

                                SCOPE OF W AIVER

      The plea agreement language encompasses M r. Varela’s argument that he

was entitled to a two-to-four-level deduction under U.S.S.G. § 3B1.2 because he

allegedly played a minor role in the crime. M r. Varela “knowingly waive[d] the

right to appeal . . . any sentence within the statutory maximum authorized by

law.” Plea Agreement at 4-5. His sentence of eighty-four months’ imprisonment

falls within the statutory maximum of forty years’ imprisonment. Furthermore,

no promise was made that M r. Varela would receive a two-to-four-level deduction

for playing a minor role. Rather, he agreed not to seek any adjustment of the

offense level determined by the district court. Id. at 3; see also Plea Hr’g Tr. at

21.

                    KN OW ING AN D V OLU NTA RY W AIVER

      W ith respect to the second part of the Hahn test, M r. Varela argues that he

did not knowingly, intelligently, and voluntarily waive his appellate rights

because he never had an opportunity to review all of the facts of his case or all of

the aspects of his plea agreement. In determining whether M r. Varela’s waiver of

his right to appeal was made knowingly and voluntarily, we consider “whether the

                                          -3-
language of the plea agreement states that [he] entered the agreement knowingly

and voluntarily” and whether there is “an adequate Federal Rule of Civil

Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. M r. Varela bears the “burden

to present evidence from the record establishing that he did not understand the

waiver.” Id. at 1329 (quotation omitted).

      M r. Varela fails to meet his burden. He fails to set forth the facts of his

case or the aspects of the plea agreement he did not have an opportunity to

review. And he presents no record evidence showing that he did not understand

the waiver. See id. Both the plea agreement and the plea colloquy establish that

the plea was knowing and voluntary. The plea agreement states that M r. Varela

freely and voluntarily entered into the plea agreement. Plea Agreement at 5. The

agreement also states that he had “thoroughly reviewed all aspects of this case”

with counsel, and he was “fully satisfied with [counsel’s] representation.” Id. at

1. Likewise, at the plea colloquy, M r. Varela indicated that he understood the

charge against him and the elements and allegations set forth in the indictment,

that he understood the maximum penalty, that he had discussed the case fully with

his attorney, that he understood the plea agreement and had discussed it with his

attorney, that he had had sufficient time to discuss the case with his attorney and

his attorney has answ ered all of his questions to his satifaction, that he voluntarily

signed the plea agreement, that his plea at the hearing was voluntary, and that he

knowingly waived his right to appeal his sentence so long as it was within the

                                          -4-
statutory maximum. Plea Hr’g at 9-12, 14-19, 23-24. Additionally, at the plea

hearing, the prosecutor recited the facts of the case, and M r. Varela stated that

those facts were true. Id. at 27-28. W e therefore conclude that M r. Varela

knowingly and voluntarily waived his appellate rights.

                            M ISCARRIAGE OF JUSTICE

      Lastly, we consider the final part of the Hahn test: whether enforcing the

waiver w ill result in a miscarriage of justice. M r. Varela first argues that his

counsel was ineffective because counsel misled him by telling him that he would

receive a sentence of sixty-three month’s imprisonment. At the plea colloquy,

however, M r. Varela indicated that he understood that no promises had been made

concerning the length of his sentence, that his attorney could only give a best

guess regarding the length of the sentence, that the judge would decide the actual

sentence, and that he could get a more severe sentence than he thought he would.

Id. at 18, 19-20. Also, the plea agreement states that no promises or

representations were made by anyone regarding what sentence the district court

w ould im pose. Plea A greement at 5. M r. Varela therefore has not shown

ineffective assistance of counsel rendering the waiver invalid.

      W e construe M r. Varela’s remaining argument, that he never received an

opportunity to fully review the presentence investigation report, as an assertion

that the waiver was “otherwise unlawful.” See Hahn, 359 F.3d at 1327 (quotation

omitted). For an “otherwise unlawful” waiver, the error must seriously affect the

                                           -5-
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. After reviewing the

appellate filings and the record on appeal, we conclude that M r. Varela has not

met his burden of persuading us that the waiver is unlawful. See United States v.

M aldonado, 410 F.3d 1231, 1233 (10th Cir.) (per curiam), cert. denied, 126 S. Ct.

577 (2005). The plea agreement made clear that M r. Varela faced a possible

maximum sentence of forty years’ imprisonment and that he was giving up his

constitutional and appellate rights. Also, the sentence complied with the terms of

the plea agreement and with M r. V arela’s understanding of the plea. See id. at

1234. Additionally, defense counsel represented at the sentencing hearing that he

had reviewed the presentence investigation report with M r. Varela and that the

report was accurate. Sentencing Hr’g Tr. at 2. M r. Varela had an opportunity to

speak at the sentencing hearing, but he made no mention of the report. W e

therefore conclude that M r. Varela failed to show any error affecting the fairness,

integrity, or public reputation of his judicial proceedings. See Olano, 507 U.S. at

732; Hahn, 359 F.3d at 1327.

      W e GRANT the government’s motion to enforce the plea agreement and

DISM ISS the appeal. In light of our decision, we DENY M r. Varela’s request for

appointment of counsel as moot. The mandate shall issue forthwith.

                                                    ENTERED FOR TH E CO UR T

                                                    PER CURIAM

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