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

                            FOR THE TENTH CIRCUIT                          January 27, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 19-2135
                                                   (D.C. No. 2:19-CR-01290-JAP-1)
 HECTOR ULISES CISNEROS-TOPETE,                               (D. N.M.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

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

      Hector Ulises Cisneros-Topete pleaded guilty to reentry of a removed alien in

violation of 8 U.S.C. §§ 1326(a) and (b). The district court sentenced him to

37 months’ imprisonment. Although his plea agreement contained a broad waiver of

his appellate rights, he seeks to challenge his sentence through this appeal. 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).

      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


      *
         This order and judgment is not binding precedent, except under the doctrines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.
voluntarily waived his appellate rights; and (3) whether enforcing the waiver would

result in a miscarriage of justice.” Id. at 1325. The government asserts that all of the

Hahn conditions have been satisfied: (1) Mr. Cisneros-Topete’s appeal is within the

scope of the appeal waiver because his sentence was within the range contemplated

by the plea agreement; (2) he knowingly and voluntarily waived his appellate rights;

and (3) enforcing the waiver would not result in a miscarriage of justice. In response

to the government’s motion, Mr. Cisneros-Topete, through counsel, states that he

“has found no non-frivolous argument in opposition to the Government’s Motion.”

Resp. at 1.

      Based on this concession and our independent review of the record, we grant

the government’s motion and dismiss the appeal. We do so, however, without

prejudice to Mr. Cisneros-Topete’s right to pursue post-conviction relief on the

grounds permitted in his plea agreement.


                                            Entered for the Court
                                            Per Curiam




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