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

                             FOR THE TENTH CIRCUIT                              July 2, 2018
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 18-1033
                                                  (D.C. No. 1:14-CR-00144-CMA-8)
JUAN MIGUEL ESPINOZA-ROMERO,                                  (D. Colo.)
a/k/a Macizo,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, KELLY, and EID, Circuit Judges.
                  _________________________________

      Juan Miguel Espinoza-Romero pleaded guilty to (1) conspiring to distribute

and possess with intent to distribute more than one kilogram of a mixture and

substance containing a detectable amount of heroin, and more than 500 grams of a

mixture and substance containing a detectable amount of cocaine, and aiding and

abetting, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A)(i), (b)(1)(B)(ii)(II),

and 18 U.S.C. § 2; and (2) conspiring to commit money laundering and aiding and

abetting, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i)-(ii) and 2. He entered into a




      *
         This order and judgment is not binding precedent, except under the doctrines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.
plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C), in which he agreed with the

government to accept a prison sentence of between 120 months and 168 months.

      In the agreement, Mr. Espinoza-Romero waived his right to appeal any matter

in connection with his prosecution, conviction, or sentence unless the sentence

exceeded the statutory maximum; his sentence was greater than fourteen years (168

months); the district court determined that his total offense level was greater than 34

and imposed a sentence above the sentencing guideline range calculated for that total

offense level; or the government appealed the sentence. The district court sentenced

him to 144 months in prison on each count, to run concurrently. Notwithstanding the

appeal waiver, Mr. Espinoza-Romero filed a notice of appeal.

      The government has moved to enforce the appeal waiver under United States

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

Mr. Espinoza-Romero’s counsel filed a motion to withdraw and an Anders brief.

See Anders v. California, 386 U.S. 738, 744 (1967) (authorizing counsel to request

permission to withdraw where counsel conscientiously examines case and determines

that appeal would be wholly frivolous). Counsel states that he has conscientiously

examined the case and finds the appeal, including the potential issues he has

identified and any opposition to the motion to enforce, to be wholly frivolous. We

gave Mr. Espinoza-Romero an opportunity to file a pro se response to the motion to

enforce. See id. at 744. To date, he has not done so.

      Nonetheless, under Anders, we have conducted an independent review of the

plea agreement, change of plea hearing transcript, sentencing hearing transcript, and

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motion to enforce. See id. After doing so, we conclude that the requirements for

enforcing the appeal waiver at this time have been satisfied: (1) this “appeal falls

within the scope of the waiver of appellate rights”; (2) Mr. Espinoza-Romero

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

waiver would [not] result in a miscarriage of justice.” Hahn, 359 F.3d at 1325.

      We grant the government’s motion to enforce the plea agreement, grant

counsel’s motion to withdraw, and dismiss the appeal.


                                            Entered for the Court
                                            Per Curiam




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