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

                           FOR THE TENTH CIRCUIT                       January 8, 2014

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

             Plaintiff - Appellee,

v.                                                        No. 13-1326
                                               (D.C. No. 1:11-CR-00412-MSK-1)
HILARIO QUINTERO-RODRIGUEZ,                                (D. Colo.)
a/k/a The Big Guy, a/k/a Santa Claus,

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.


      After entering into a plea agreement that included a waiver of his right to

appeal, Hilario Quintero-Rodriguez pleaded guilty to four drug-trafficking counts.

At sentencing the government recommended that he receive the statutory minimum

of 120 months of imprisonment (12 fewer months than the 132 months that the plea

agreement obligated the government to recommend). The district court accepted the



*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
recommendation and, departing downward from the applicable Guidelines range,

imposed 120 months of imprisonment on each count, to be served concurrently.

      When Mr. Quintero-Rodriguez appealed, the government moved to enforce the

appeal waiver under United States v. Hahn, 359 F.3d 1315, 1325, 1328 (10th Cir.

2004) (en banc) (per curiam). In response, Mr. Quintero-Rodriguez’s counsel

asserted it would be frivolous to contest the motion to enforce and moved to

withdraw. We gave Mr. Quintero-Rodriguez the opportunity to respond to his

counsel’s filing, but to date we have received no response from him.

      Under Anders v. California, 386 U.S. 738, 744 (1967), we must examine the

proceedings and “decide whether the case is wholly frivolous.” Hahn sets forth three

factors for determining whether an appeal waiver is enforceable: “(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.” 359 F.3d at 1325.

                                 Scope of the Waiver

      The first Hahn factor is whether the issues on appeal fall within the scope of

the waiver. Id. The plea agreement provides:

      The defendant is aware that 18 U.S.C. §3742 affords a defendant the
      right to appeal the sentence imposed. Understanding this and in
      exchange for the sentencing concessions made by the Government in
      this agreement, the defendant knowingly and voluntarily waives the
      right to appeal any matter in connection with this prosecution,
      conviction, or sentence unless it meets one of the following four
      criteria: (1) the sentence imposed is above the maximum penalties
      provided for in the statute of conviction; (2) the Court, after determining

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      the otherwise applicable sentencing guideline range, either departs or
      varies upwardly; (3) the Court denies a Government motion for
      sentencing reduction in the this matter if one is, as is presently
      anticipated, filed; or (4) the Court determines that the adjusted offense
      level is greater than 37 and imposes a sentence based upon that offense
      level determination. Except as provided above, the defendant also
      knowingly and voluntarily waives the right to appeal the manner in
      which the sentence is determined on the grounds set forth under
      18 U.S.C. §3742. . . . Additionally, if the Government appeals the
      sentence imposed by the Court, the defendant is released from these
      waiver provisions.

Mot., Attach. 1 at 3-4. In his docketing statement, Mr. Quintero-Rodriguez identifies

as his issues on appeal: “(1) all pre-trial rulings; (2) whether the District Court erred

in denying Defendant Quintero-Rodriguez’s objection to PSI?; (3) is the sentence

imposed of 120 months reasonable; and (4) any other issue supported by the entire

record in this case.” Dktg. St. at 4.

      The waiver is broad, covering “any matter in connection with this prosecution,

conviction, or sentence” unless it satisfies one of the listed exceptions. Mot., Attach.

1 at 3. And none of the exceptions is applicable. Mr. Quintero-Rodriguez received

the minimum sentence, not one above the maximum, and the court departed

downward, not upward. The district court granted, not denied, the government’s

motion for a sentencing reduction, and the court did not determine that the offense

level was greater than 37. Finally, the government has not appealed the sentence.

Accordingly, this appeal falls within the scope of the waiver.




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                                Knowing and Voluntary

      The second factor is whether the waiver was knowing and voluntary. Hahn,

359 F.3d at 1325. In evaluating this factor, “we examine whether the language of the

plea agreement states that the defendant entered the agreement knowingly and

voluntarily,” and “we look for an adequate Federal Rule of Criminal Procedure 11

colloquy.” Id. “The defendant bears the burden to prove that he did not knowingly

and voluntarily enter into his plea agreement.” United States v. Anderson, 374 F.3d

955, 958 (10th Cir. 2004) (internal quotation marks omitted).

      The waiver paragraph in the plea agreement repeatedly states that the waiver is

knowing and voluntary. Further, there was an adequate Rule 11 colloquy. The

district court initially postponed the plea hearing because it was not clear that

Mr. Quintero-Rodriguez understood the plea agreement. At the reconvened plea

hearing, the district court confirmed that Mr. Quintero-Rodriguez and his counsel had

reviewed the agreement and that he had all his questions answered; that the plea

agreement reflected the entirety of the parties’ agreement; that he knew the rights that

he was waiving; that he was not under the influence of medications or alcohol; and

that he had not been coerced into pleading guilty. When Mr. Quintero-Rodriguez

expressed some dissatisfaction with his attorney, the court inquired further,

determining that he generally was satisfied with his representation, but that he was

unhappy that he did not receive written discovery in Spanish (the interpreter

reviewed discovery with him orally). And the district court specifically reviewed the


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appeal waiver, with Mr. Quintero-Rodriguez acknowledging his understanding of the

provision. Mr. Quintero-Rodriguez has pointed to nothing to undermine all this

evidence that the waiver was knowing and voluntary.1

       Accordingly, we conclude that Mr. Quintero-Rodriguez entered into the appeal

waiver knowingly and voluntarily.

                                 Miscarriage of Justice

       Finally, we consider whether enforcing the waiver would result in a

miscarriage of justice. Hahn, 359 F.3d at 1325. Under Hahn, a miscarriage of

justice is established only “[1] where the district court relied on an impermissible

factor such as race, [2] where ineffective assistance of counsel in connection with the

negotiation of the waiver renders the waiver invalid, [3] where the sentence exceeds

the statutory maximum, or [4] where the waiver is otherwise unlawful.” Id. at 1327

(internal quotation marks omitted). Because the record does not indicate that any of

these circumstances occurred, we cannot conclude that enforcing the waiver would

result in a miscarriage of justice.




1
       Before imposing sentence, the district court addressed pro se motions by
Mr. Quintero-Rodriguez to withdraw his guilty plea and for substitute counsel, in
which Mr. Quintero-Rodriguez represented that his counsel had improperly coerced
him to plead guilty. After reviewing all of the assurances of understanding and
voluntariness that Mr. Quintero-Rodriguez made during the plea hearing, and noting
that he had received every benefit under the plea agreement (and more), the district
court rejected the allegations of coercion and denied the motions. This episode does
not undermine our conclusion that the appeal waiver was knowing and voluntary.


                                          -5-
      Because it is “wholly frivolous” for Mr. Quintero-Rodriguez to oppose the

motion to enforce, Anders, 386 U.S. at 744, the motion to enforce and counsel’s

motion to withdraw are granted. The appeal is dismissed.


                                              Entered for the Court
                                              Per Curiam




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