                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       August 6, 2007
                             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. 07-3120
                                                  (D.C. No. 06-CR-20142-JW L)
    JESSIE CHAVEZ-VARG AS,                                  (D . Kan.)

              Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before BR ISC OE, L UC ER O, and H ARTZ, Circuit Judges.


          Defendant Jessie C havez-Vargas pled guilty to one count of conspiracy to

distribute and possess with intent to distribute methamphetamine in violation of

21 U.S.C. § 846. He was sentenced to 262 months in prison, which was at the

high end of the guideline range as determined by the court. His plea agreement

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

collaterally attack any matter in connection with this prosecution, conviction, and


*
      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 This order and judgment is not binding precedent, except under the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.
sentence.” M ot., Ex. 1 at ¶10. The agreement further explains “[i]n other words,

the defendant waives his right to appeal the conviction in this case and waives the

right to appeal the sentence imposed in this case except to the extent, if any, the

Court departs upward from the applicable Guideline range determined by the

Court.” Id. M r. Chavez-Vargas appealed from his conviction and sentence and

the government has moved to enforce his appeal waiver under United States v.

Hahn, 359 F.3d 1315 (10th Cir. 2004). 1 W e grant the motion and dismiss the

appeal.

      Under Hahn, we will enforce an appeal waiver if (1) “the disputed appeal

falls within the scope of the waiver of appellate rights”; (2) “the defendant

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

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

M r. Chavez-Vargas contends his appeal does not fall within the scope of his

appellate w aiver.




1
       Tenth Circuit Rule 27.2(A)(3) provides that “[i]f possible,” a motion to
enforce a plea waiver “must be filed within 15 days after the notice of appeal is
filed.” Rule 27.2(A)(1)(d) requires that the government attach copies of the plea
agreement and transcripts of the plea hearing and sentencing hearing. The
government notes that it did not file its motion within fifteen days of the filing of
the notice of appeal as required by 10th Cir. R. 27.2(A)(3) because it was waiting
for the necessary transcripts to become available. The rule provides that a motion
may be filed out of time upon a showing of good cause. Id. Because the
governm ent filed its motion w ithin fifteen days after receiving the transcripts, w e
conclude that there was good cause for the government’s late filing.

                                          -2-
      M r. Chavez-Vargas does not explain the nature of his appeal, but he argues

that his appeal does not fall within the scope of his appellate waiver because the

waiver is ambiguous. Although he acknowledges that the language from his plea

agreement quoted above is “admittedly quite plain,” he asserts that the following

language “casts ambiguity into the analysis.” Resp. at 3. That language states:

“‘The defendant is aware that Title 18, U.S.C. § 3742 affords a defendant the

right to appeal the conviction and sentence imposed.’” Id. (quoting M ot., Ex. 1 at

¶10). M r. Chavez-Vargas argues that “[a]lthough [he] has plainly and knowingly

waived his right to appeal under 18 U.S.C. § 3742, this Court could reasonably

find that the plea agreement’s silence on the question of whether [his] appeal

waiver includes a waiver of appeal rights under [28] U.S.C. [§] 1291 creates an

ambiguity which must be construed against the government.” Id. This argument

is frivolous. Section 1291 does not confer any substantive appellate rights upon

M r. Chavez-Vargas so there was nothing for him to waive; this provision simply

states that “courts of appeals . . . shall have jurisdiction of appeals from all final

decisions of the [federal] district courts.” 28 U.S.C. § 1291. The absence of

language in the plea agreement regarding § 1291 does not make

M r. Chavez-Vargas’ appellate waiver ambiguous.

      Next, M r. Chavez-Vargas argues that a portion of the plea colloquy “could

be construed to contain ambiguity.” Resp. at 4. He contends that the following

language is ambiguous:

                                           -3-
      Q.     Bottom line of what you have done in Paragraph 10 [of the
             plea agreement] is, for all intents and purposes, or certainly
             more likely than not, whatever sentence this court gives you is
             going to be the sentence you’re going to serve. Do you
             understand?

      A.     Yes.

Id. at 4 (quoting M ot., Ex. 2 at 17). M r. Chavez-Vargas asserts that the district

court’s reference to “‘more likely than not,’” could be read to mean that his

appeal options are “limited but not completely foreclosed.” Id. He argues that

this ambiguity should be construed against the government and that this court

should find that his appeal does not fall w ithin the scope of his appellate waiver.

This argument is also frivolous. The plea agreement does contain two exceptions

that would allow M r. Chavez-Vargas to appeal his sentence: (1) if “the Court

departs upwards from the applicable Guideline range determined by the Court” or

(2) “if the United States exercises its right to appeal the sentence imposed as

authorized by Title 18, U.S.C. § 3742(b).” M ot., Ex. 1 at ¶ 10. Because of these

exceptions, the district court’s language that “more likely than not, whatever

sentence this court gives you is going to be the sentence you’re going to have

serve,” M ot., Ex. 2 at 17, is not ambiguous or inconsistent with the plea

agreement.

      Because there was no ambiguity in the plea agreement or plea colloquy and

because this appeal does not fall within either of the two exceptions identified in

the plea agreement, we conclude that M r. Chavez-Vargas’ appeal falls within the

                                          -4-
scope of the w aiver of his appellate rights. Accordingly, the government’s

motion is GRANTED and the appeal is DISM ISSED. The mandate shall issue

forthwith.



                                      ENTERED FOR THE COURT
                                      PER CURIAM




                                        -5-
