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

                            FOR THE TENTH CIRCUIT                            June 30, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 20-3017
                                                   (D.C. No. 2:16-CR-20017-CM-1)
 FERNANDO GUEVARA-GUEVARA,                                     (D. Kan.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

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

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

appeal waiver in Fernando Guevara-Guevara’s plea agreement. We grant defense

counsel’s motion to withdraw, grant the government’s motion to enforce

Mr. Guevara-Guevara’s appeal waiver, and dismiss the appeal.

      Mr. Guevara-Guevara pleaded guilty to conspiracy to distribute and possess

with intent to distribute more than 50 grams of methamphetamine, in violation of

21 U.S.C. § 846, and distributing more than 50 grams of methamphetamine, in

violation of 21 U.S.C. § 841(a)(1). The district court determined that the applicable



      *
         This order and judgment is not binding precedent, except under the doctrines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.
Guidelines range was 262 to 324 months’ imprisonment based in part on findings that

a weapon was involved in the offense and that Mr. Guevara-Guevara was not

safety-valve eligible, was not a minor participant in the crime, and used his apartment

for the purpose of distributing drugs. The court then found that a downward

departure was appropriate and imposed a below-Guidelines sentence of 133 months.

      As part of his plea agreement, Mr. Guevara-Guevara agreed to waive his right

to appeal “any matter in connection with this prosecution, his conviction, or . . . the

sentence imposed in this case” unless the court imposed a sentence above what it

determined was the applicable Guidelines range or the government appealed the

sentence imposed. Mot. to Enforce, Attach. C at 11-12. Despite this broad appeal

waiver, he filed a notice of appeal. His docketing statement indicates that he intends

to appeal the district court’s rulings on pre-plea motions and its Guidelines-range

findings, and to challenge the sentence imposed as unreasonable and not based on the

evidence presented. The government filed a motion to enforce the appeal waiver

under United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc)

(per curiam).

      In response to the government’s motion, Mr. Guevara-Guevara’s counsel cited

Anders v. California, 386 U.S. 738, 744 (1967), and stated that Mr. Guevara-Guevara

has no non-frivolous argument against enforcement of his appeal waiver. Counsel

also requested permission to withdraw from representing Mr. Guevara-Guevara.

See id. We then gave Mr. Guevara-Guevara an opportunity to file a pro se response

to the motion to enforce. In his response, Mr. Guevara-Guevara claims he received

                                            2
ineffective assistance of plea counsel. In particular, he complains that counsel

(1) told him he would be sentenced to between 12 and 16 years and that he could

file a motion for sentence reduction after sentencing based on his contention that he

was a minor participant in the offense; (2) did not follow up on his repeated requests

that counsel file motions for a shorter sentence based on allegations that

Mr. Guevara-Guevara’s telephone calls with counsel were recorded and their

in-person meetings were videotaped; and (3) did not respond to Mr. Guevara-

Guevara’s and his family’s attempts to contact him during the two years between the

change of plea hearing and counsel’s withdrawal in 2019.1 Mr. Guevara-Guevara

also complains that he is unsafe and has received inadequate medical treatment in

prison and that the judge who imposed his sentence may have been distracted at the

time of the sentencing hearing because he later resigned based on allegations of

sexual misconduct.

      In evaluating a motion to enforce, 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.” Hahn, 359 F.3d

at 1325. Having reviewed the proceedings in accordance with our obligation under

Anders, we conclude that the Hahn factors have been met and that there is no

non-frivolous argument to make against enforcing the appeal waiver.


      1
        Mr. Guevara-Guevara was represented by substitute counsel at the sentencing
hearing.
                                           3
      As to the first Hahn factor, neither of the exceptions to the appeal waiver

applies, so Mr. Guevara-Guevara’s appeal of his conviction and sentence fall within

the scope of the waiver. Specifically, as noted above, the district court imposed a

sentence significantly below the applicable Guidelines range and the government did

not appeal the sentence.2

      As for the second and third Hahn factors, the written plea agreement and the

colloquy at the change of plea hearing confirm that Mr. Guevara-Guevara knowingly

and voluntarily waived his appellate rights, and there is no basis for concluding that

enforcing the waiver would result in a miscarriage of justice. As pertinent here, a

miscarriage of justice occurs where “ineffective assistance of counsel in connection

with the negotiation of the waiver renders the waiver invalid” or “the waiver is

otherwise unlawful.” Hahn, 359 F.3d at 1327 (internal quotation marks and citations

omitted). To show that an appeal waiver is “otherwise unlawful,” the defendant must

prove that the alleged error “seriously affect[ed] the fairness, integrity, or public

reputation of judicial proceedings.” Id. (internal quotation marks omitted). None of

the claims Mr. Guevara-Guevara raised in his pro se response affects the validity of

the appeal waiver, and none establishes that enforcing it would be fundamentally



      2
        Mr. Guevara-Guevara suggested in his pro se response that he wants to seek a
sentence reduction based on his assertion that he was a minor participant in the
offense. To the extent this can be construed as a challenge to the district court’s
rejection of his minor-participant contention in the context of determining his
Guidelines range, that issue falls squarely within the scope of the waiver, which bars
an appeal of “any matter” related to the determination of the sentence. Mot. to
Enforce, Attach. C at 11.
                                            4
unfair. Indeed, most of his complaints are about events that occurred after he agreed

to the wavier and pleaded guilty. His only complaint that has anything to do with

plea negotiations is that counsel told him he would be sentenced to between 12 and

16 years in prison, but given that he was ultimately sentenced to about 11 years, he

would be hard pressed to show that he was prejudiced by counsel’s erroneous

estimation.3 Moreover, Mr. Guevara-Guevara’s complaints about the sentencing

proceedings, including the judge’s subsequent resignation, challenge the propriety of

his sentence, not the legality of his appeal waiver, so do not support a miscarriage-of-

justice claim. See United States v. Smith, 500 F.3d 1206, 1212-13 (10th Cir. 2007)

(explaining that the miscarriage-of-justice inquiry “looks to whether the waiver is

otherwise unlawful, not to whether another aspect of the proceeding may have

involved legal error,” and holding that a defendant may not rely on alleged errors at

sentencing to avoid enforcement of an appeal waiver (citation and internal quotation

marks omitted)).

      Accordingly, we grant the government’s motion to enforce Mr. Guevara-

Guevara’s appeal waiver and dismiss this appeal. We also grant defense counsel’s

motion to withdraw.


                                            Entered for the Court
                                            Per Curiam




      3
        In any event, we note that the appeal waiver does not foreclose him from
pursuing “any subsequent claims with regards to ineffective assistance of counsel.”
Mot. to Enforce, Attach C at 12.
                                           5
