                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                     December 18, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

                                                          No. 12-4163
v.                                               (D.C. No. 1:11-CR-00109-TS-1)
                                                            (D. Utah)
FRANCISCO HUERTA-CESAREO,

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before KELLY, LUCERO, and MATHESON, Circuit Judges.


      After accepting a plea agreement that included a waiver of his right to appeal,

Francisco Huerta-Cesareo pleaded guilty to one count of possession with intent to

distribute 50 grams or more of a mixture or substance containing a detectable

amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). At sentencing,

the district court found that his advisory sentencing guideline range was

*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
168 to 210 months, but it departed downwardly from that range and sentenced

Mr. Huerta-Cesareo to 100 months. Despite the waiver, he appealed. The

government has now moved to enforce the appeal waiver. See United States v. Hahn,

359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).

       Under Hahn, in evaluating a motion to enforce a waiver, we consider:

“(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. In his response to the government’s motion, Mr. Huerta-Cesareo

addresses only the second of these factors: whether he knowingly and voluntarily

waived his appellate rights. Accordingly, we consider only that factor.

       When determining whether a waiver of appellate rights is knowing and
       voluntary, we especially look to two factors. First, we examine whether
       the language of the plea agreement states that the defendant entered the
       agreement knowingly and voluntarily. Second, we look for an adequate
       Federal Rule of Criminal Procedure 11 colloquy.

Id. (citation omitted).

       Mr. Huerta-Cesareo does not challenge the fact that the plea agreement he

signed expressly recited that he had knowingly and expressly waived his right to

appeal. See “Statement by Def. in Advance of Plea of Guilty,” at 3, 4. Instead, he

targets the adequacy of the plea colloquy. But he does not present any evidence from

the plea colloquy to meet his burden to establish that he did not knowingly and

voluntarily enter into the waiver. See Hahn, 359 F.3d at 1329 (stating defendant


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bears the burden to show that he did not knowingly and voluntarily enter into his plea

agreement).

      Instead, Mr. Huerta-Cesareo makes a very narrow argument: that in the

absence of an explicit finding by the district court that he understood his rights and

knowingly waived them, we should presume that his waiver was not knowing and

voluntary, regardless of whether he presented any evidence on the issue. Aplt. Resp.,

at 2. Contrary to Mr. Huerta-Cesareo’s suggestion, Fed. R. Crim. P. 11 does not

require that the district court make an express finding that the plea or the appeal

waiver is voluntary. But even if Rule 11 implicitly required such a finding, any

variance from the requirements of Rule 11 would be harmless under the facts of this

case. See Fed. R. Crim. P. 11(h) (incorporating principle of harmless error).

      Here, the district court did address Mr. Huerta-Cesareo in open court

concerning the voluntariness of his plea and his understanding of the appeal waiver.

See Fed. R. Crim. P. 11(b)(1)(N), (b)(2). We note the colloquy included the

following question and response:

      THE COURT: Do you understand that as a part of the plea agreement,
      you are waiving your right to appeal your conviction or sentence?

      [MR. HUERTA-CESAREO]: Yes.

Change of Plea Tr., at 12.

      Moreover, Mr. Huerta-Cesareo has failed to establish that the lack of a finding

would entitle him to an affirmative presumption that his waiver was not knowing or

involuntary, or relieve him of his burden of proof on this issue. In light of the

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statements in his plea agreement, which his attorney went over with him in detail, see

id. at 10, and in light of the questions and his answers concerning his guilty plea and

the appeal waiver at sentencing, Mr. Huerta-Cesareo has failed to show that he could

meet his burden.

      The motion to enforce is granted, and this appeal is dismissed.


                                                Entered for the Court
                                                Per Curiam




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