                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 28, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 10-7040
                                              (D.C. No. 6:07-CR-00047-RAW-11)
    FERNANDO VAZQUEZ,                                     (E.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, LUCERO, and HOLMES, Circuit Judges.



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

appeal waiver contained in defendant Fernando Vazquez’s plea agreement. The

defendant pleaded guilty to conspiracy to possess with intent to distribute and

distribution of controlled substances. Pursuant to the plea agreement, the

defendant waived his right to appeal his conviction or his sentence, provided his

sentence was within the statutory maximum authorized by law and within the


*
      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 This order and judgment is not binding precedent, except under the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.
advisory sentencing guideline range determined by the district court to apply.

The defendant’s sentence was below the statutory maximum and within the

advisory guideline range. Nevertheless, the defendant filed a notice of appeal.

      The government filed a motion to enforce the plea agreement pursuant to

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

In response, the defendant’s counsel stated that there are no non-frivolous

arguments that can be presented in response to the motion to enforce, citing

Anders v. California, 386 U.S. 738, 744 (1967), and requesting permission to

withdraw as counsel. This court gave the defendant an opportunity to file a pro se

response to the motion to enforce, see id., and granted him an extension of time to

file his response to the motion. To date, the defendant has not filed a response to

the motion to enforce.

      Under Anders, we have reviewed the motion and the record and we

conclude that the defendant’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. See Hahn,

359 F.3d at 1325 (describing the factors this court considers when determining

whether to enforce a waiver of appellate rights).




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

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


                                    ENTERED FOR THE COURT
                                    PER CURIAM




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