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

                           FOR THE TENTH CIRCUIT                       March 11, 2014

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

             Plaintiff - Appellee,

v.                                                       No. 13-6211
                                                 (D.C. No. 5:10-CR-00281-F-1)
ALBERTO GOMEZ-GOMEZ,                                     (W.D. Okla.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, EBEL, and O’BRIEN, Circuit Judges.


      After accepting a plea agreement that included a waiver of his right to appeal,

Alberto Gomez-Gomez pleaded guilty to one count of conspiracy to possess with

intent to distribute and to distribute methamphetamine, 21 U.S.C. § 846, and one

count of reentry of a removed alien, 8 U.S.C. § 1326(a). He was sentenced to

concurrent terms of 240 months’ imprisonment for each offense, to be followed by a


*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
period of supervised release. Despite the waiver, he appealed. The government has

moved to enforce the appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328

(10th Cir. 2004) (en banc) (per curiam).

      Mr. Gomez contends that the plea agreement should not be enforced for two

reasons: (1) the government breached the plea agreement—or otherwise acted

unconstitutionally—by failing to ask the district court to vary or depart below the

mandatory minimum sentence on the conspiracy count; and (2) the twenty-year

mandatory minimum sentence is unconstitutional because it relied on a prior

aggravated felony that was not alleged in the indictment, submitted to a jury, and

found beyond a reasonable doubt.

      Having examined the parties’ submissions and the applicable law, we conclude

that Mr. Gomez has failed to show that the government breached the plea agreement

or acted unconstitutionally. He has also failed to demonstrate that the twenty-year

mandatory minimum sentence was unconstitutional in his case.

      The motion to enforce is therefore granted, and this appeal is dismissed.

Mr. Gomez’s motion to seal his response to the government’s motion is granted.


                                                 Entered for the Court
                                                 Per Curiam




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