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

                           FOR THE TENTH CIRCUIT                        June 14, 2012

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

             Plaintiff-Appellee,

v.                                                        No. 12-2046
                                                (D.C. No. 1:10-CR-01926-BB-1)
BEATRIZ ADRIANA                                            (D. N.M.)
CARDENAS-URIARTE,

             Defendant-Appellant.


                           ORDER AND JUDGMENT*


Before O’BRIEN, TYMKOVICH, and GORSUCH, Circuit Judges.


      Beatriz Adriana Cardenas-Uriarte pleaded guilty to conspiracy and multiple

counts of distributing more than fifty grams of methamphetamine. 21 U.S.C. §§ 846,

841(a)(1), and 18 U.S.C. § 2. She was sentenced to 144 months in prison, which was

below her advisory guideline range. Although she waived her appellate rights as part

of her plea agreement, Ms. Cardenas-Uriarte filed an appeal challenging her

*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
sentence. The government has since moved to enforce the appeal waiver pursuant to

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

Ms. Cardenas-Uriarte responded that enforcing her appeal waiver would result in a

miscarriage of justice because her sentence was wrongfully enhanced pursuant to

U.S.S.G. § 2D1.1(b)(1). We disagree and accordingly grant the government’s motion

to enforce the appeal waiver and dismiss the appeal.

      Under Hahn, 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 [her] appellate rights; and (3) whether enforcing the waiver would

result in a miscarriage of justice.” Id. at 1325. The miscarriage-of-justice prong

requires the defendant to show (a) “the district court relied on an impermissible

factor, such as race”; (b) “ineffective assistance of counsel in connection with the

negotiation of the waiver rendered the waiver invalid”; (c) her “sentence exceeds the

statutory maximum”; or (d) her appeal “waiver is otherwise unlawful” and the error

“seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.

Id. at 1327 (quotation omitted).

      The only basis upon which Ms. Cardenas-Uriarte contests her appeal waiver is

the miscarriage-of-justice prong. See United States v. Porter, 405 F.3d 1136, 1143

(10th Cir. 2005) (declining to consider uncontested factor). She argues that enforcing

her appeal waiver would result in a miscarriage of justice because the waiver is

otherwise unlawful. In particular, she refers us to U.S.S.G. § 2D1.1(b)(1), under


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which her sentence was enhanced for possession of a dangerous weapon, and asserts

the district court wrongly applied the enhancement because the disputed firearm was

likely kept for protection by a government witness. She argues that this sentencing

error resulted from the government’s failure to show that she possessed the firearm as

required by § 2D1.1(b)(1). The problem with this argument, however, is that it is

foreclosed by our precedent. Indeed, we have explained that in considering whether

an appeal waiver is “otherwise unlawful,” we look only “to whether the waiver

[itself] is otherwise unlawful,” not to whether there was a sentencing error. United

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

rationale is simple: the alleged error would invalidate the appeal waiver “based on

the very sort of claim it was intended to waive.” Id. Because Ms. Cardenas-Uriarte

advances no argument impeaching the waiver itself, she fails to show a miscarriage

of justice.

       Accordingly, we GRANT the government’s motion to enforce the appeal

waiver and DISMISS the appeal.


                                               Entered for the Court
                                               Per Curiam




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