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

                             FOR THE TENTH CIRCUIT                         June 17, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                        No. 16-2021
                                                 (D.C. No. 1:15-CR-01506-JB-1)
VICTOR HURTADO,                                             (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, GORSUCH, and MORITZ, Circuit Judges.
                  _________________________________

      After he robbed a pharmacy at gunpoint to obtain oxycodone, Victor Hurtado

pled guilty to interference and conspiracy to interfere with interstate commerce by

robbery and violence in violation of 18 U.S.C. § 1951(a), brandishing a firearm in

furtherance of a crime of violence in violation of 18 U.S.C. § 924(c), and possession

with intent to distribute oxycodone in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(C). The district court sentenced him to 141 months in prison, followed by five

years of supervised release.


      *
         This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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.
       In his plea agreement, Mr. Hurtado waived his right to appeal or collaterally

attack his convictions and sentence, except he reserved the right to file a collateral

attack based on ineffective assistance of counsel. Despite this broad waiver, he filed

this appeal seeking to challenge his § 924(c) conviction as constitutionally invalid in

light of Johnson v. United States, 135 S. Ct. 2551 (2015).

      The government has moved to enforce the appeal waiver in the plea agreement

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

Hahn instructs us to enforce appeal waivers as long as three conditions are met:

(1) the matter on appeal falls within the scope of the waiver; (2) the defendant

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

will not result in a miscarriage of justice. Id. at 1325. The government’s motion

addresses each of these conditions and why they are satisfied.

      Mr. Hurtado’s court-appointed counsel has not requested permission to

withdraw under Anders v. California, 386 U.S. 738, 744 (1967),1 but in the response

he filed on behalf of Mr. Hurtado he agreed with the government that the appeal

waiver applies such that “the appeal should be dismissed, in accord with the bargain

struck in the district court between the government and defendant.” Resp. to Mot. to

Enforce at 2. We gave Mr. Hurtado notice of his counsel’s position and directed him

      1
         Counsel did move to withdraw after filing the notice of appeal, believing that
Mr. Hurtado was going to hire new counsel. We denied his motion without prejudice
for failing to meet the requirements of 10th Cir. R. 46.4(A)—a task complicated by
counsel’s inability to reach Mr. Hurtado while he was in transit within the Bureau of
Prisons. New counsel never materialized.


                                            2
to file a response showing why this court should not enforce the waiver. The

deadline for doing so has passed, with no response from Mr. Hurtado.

      Having independently and thoroughly reviewed the record per Anders, see

386 U.S. at 744, we conclude that Mr. Hurtado does not have a non-frivolous

response to the government’s motion. The government unequivocally establishes

that the appeal falls within the scope of the waiver, the waiver was knowing and

voluntary, and enforcing the waiver will not result in a miscarriage of justice. See

Hahn, 359 F.3d at 1325. We therefore grant the government’s motion to enforce and

dismiss the appeal.


                                           Entered for the Court
                                           Per Curiam




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