                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   August 1, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 11-3048
                                               (D.C. No. 5:09-CR-40041-JAR-1)
    ADAN MOLINA,                                           (D. Kan.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before LUCERO, EBEL, and TYMKOVICH, Circuit Judges.



         This matter is before the court on the government’s motion to enforce the

appeal waiver contained in defendant Adan Molina’s plea agreement. We grant

the government’s motion and dismiss the appeal.

         Mr. Molina pleaded guilty to conspiracy to possess with the intent to

distribute and dispense 500 grams or more of a mixture containing a detectable



*
      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 This order and judgment is not binding precedent, except under the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.
amount of methamphetamine. Pursuant to the plea agreement, Mr. Molina

“knowingly and voluntarily waive[d] any right to appeal or collaterally attack any

matter in connection with [his] prosecution, [ ] conviction, or the components of

the sentence to be imposed,” provided that the sentence was “within the guideline

range determined appropriate by the court.” Plea Agreement at 10. The district

court determined that Mr. Molina’s advisory guideline range was life

imprisonment, which was the sentence it imposed. Tr. Sentencing Hr’g. at 95, 99.

      Notwithstanding his appeal waiver, Mr. Molina has filed a notice of appeal

seeking to challenge his sentence. The government has filed this motion to

enforce the plea agreement pursuant to United States v. Hahn, 359 F.3d 1315

(10th Cir. 2004) (en banc) (per curiam). We apply a three prong test to determine

if an appeal waiver is enforceable, asking “(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.” 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 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).




                                           -2-
      Scope of the Waiver. Mr. Molina states in his docketing statement that he

intends to claim on appeal that the district court erred in calculating the amount of

methamphetamine for sentencing purposes. In his objection to enforcing the plea

agreement, he states that he also seeks to challenge the procedural and substantive

reasonableness of his sentence. He argues these claims are outside the scope of

his appeal waiver.

      Mr. Molina’s proposed challenges to the district court’s calculation and

determination of his sentence are clearly within the scope of his appeal waiver.

Mr. Molina expressly waived the right to appeal “the components of the sentence

to be imposed,” and agreed that the applicable guideline range would be the

“guideline range determined appropriate by the court.” Plea Agreement at 10. To

hold the appeal waiver does not encompass alleged sentencing errors “would

nullify the waiver based on the very sort of claim it was intended to waive.”

United States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007).

      Mr. Molina also asserts that he has newly retained counsel who has not yet

determined the issues he will raise on appeal, and thus it is premature to enforce

the waiver because he may ultimately raise issues that are outside the scope of his

waiver. His argument is without merit. We have explained that one purpose of

an appellate waiver is to save the government 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 Rules 27.2(A)(1)(d), 27.2(A)(3)(b), and 27.2(C),

                                         -3-
which permit the government to file a motion to enforce an appeal waiver within

20 days of the transmittal of the record, before the opening brief is due, thus

suspending the appellate briefing schedule. See also Hahn, 359 F.3d at 1328

(ruling that the government is not required to brief an appeal until after its motion

to enforce is ruled upon). Thus, the government’s motion to enforce the appeal

waiver does not prematurely seek to resolve this appeal. Counsel’s failure to

identify the issues on appeal does not make the government’s motion to enforce

premature.

      Mr. Molina fleetingly asserts that he “believes the Government breached

the terms of the plea agreement by taking positions and making arguments at

sentencing that were contrary to the stipulations.” Resp. at 5. To determine

whether the government breached a plea agreement, we must “examine the nature

of the promise” and “evaluate the promise in light of the defendant’s reasonable

understanding of the promise at the time of the guilty plea.” United States v.

Burke, 633 F.3d 984, 994 (10th Cir. 2011) (internal quotations marks omitted),

cert. denied, 131 S.Ct. 2130 (Apr. 18, 2011). Mr. Molina’s governmental-breach

argument is completely unsupported by any reference to the plea agreement

provision that he believes was breached or to the government’s alleged positions

or arguments that he believes violated this unidentified provision. His conclusory

allegation, unsupported by any specifics, is insufficient for our consideration of

this argument.

                                          -4-
      Knowing and Voluntary. At his plea hearing, the district court asked

Mr. Molina if he understood that he was “agreeing to give up [his] rights to

appeal issues concerning the prosecution, conviction or sentence” in his case, to

which Mr. Molina answered “Yes.” Tr. Change of Plea Hr’g, at 9-10.

Mr. Molina now contends he did not knowingly and voluntarily waive his

appellate rights. He claims the district court’s explanation of the waiver was

ambiguous because “the use of the conjunction ‘or’ gave the appearance that he

was waiving but one of the issues regarding his plea from among the prosecution,

conviction and sentence.” Resp. at 9. He argues the court should have explained

that he was waiving the right to challenge the prosecution, conviction and

sentence.

      This argument is patently frivolous. No reasonable interpretation of the

conjunction “or” in Mr. Molina’s appeal waiver or in the court’s explanation of

the waiver at the plea colloquy would suggest that Mr. Molina was waiving “but

one of the issues.”

      Finally, Mr. Molina argues that this court cannot evaluate whether it would

be a miscarriage of justice to enforce the appeal waiver until it has viewed his

opening brief and reviewed the full record. As already noted, the government is

permitted to file a motion to enforce an appeal waiver before the opening brief is

due. See Tenth Cir. Rules 27.2(A)(1)(d) and 27.2(A)(3)(b). The “[d]efendant

bears the burden to demonstrate that enforcing the waiver would result in a

                                         -5-
miscarriage of justice.” United States v. Leyva-Matos, 618 F.3d 1213, 1217

(10th Cir. 2010). In response to the government’s motion, Mr. Molina fails to

suggest any basis for concluding it would be a miscarriage of justice to enforce

his appeal waiver; thus, he has not met this burden.

      Based upon our review of the motion, the record and Mr. Molina’s

response, we conclude that Mr. Molina’s proposed appeal falls within the scope of

the appeal waiver, that he knowingly and voluntarily waived his appellate rights,

and that enforcing the waiver would not result in a miscarriage of justice.

Accordingly, we GRANT the motion to enforce the appeal waiver and DISMISS

the appeal. Appellant’s motion to strike Anders brief is DENIED as moot and

Mark Bennett’s motion to withdraw as counsel is GRANTED.



                                       ENTERED FOR THE COURT


                                       PER CURIAM




                                         -6-
