                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 22, 2012
                                     PUBLISH                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.                                                      No. 11-2204
 JOSE ERNESTO SALAS-GARCIA,

       Defendant-Appellant.



         APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW MEXICO
                   (D.C. No. 1:09-CR-03597-LH-1)


Jason Bowles (B. J. Crow and Monnica L. Garcia, with him on the briefs), of
Bowles and Crow, Albuquerque, New Mexico, for Defendant-Appellant.

David N. Williams, Assistant United States Attorney, (Kenneth J. Gonzales,
United States Attorney, with him on the brief), Albuquerque, New Mexico, for
Plaintiff-Appellee.


Before BRISCOE, Chief Judge, McKAY and GORSUCH, Circuit Judges.


BRISCOE, Chief Judge.



      This is a direct appeal by Jose Salas-Garcia following his conditional plea of

guilty to one count of conspiring to possess with the intent to distribute more than
500 grams of cocaine in violation of 21 U.S.C. § 846, and one count of possessing

more than 500 grams of cocaine with the intent to distribute in violation of 21

U.S.C. § 841(a)(1), (b)(1)(B). Prior to his plea, he moved to suppress drugs found

in the vehicle he was driving as well as statements he made to police, arguing that

he was illegally arrested and the evidence subsequently obtained was the fruit of a

constitutional violation. The district court denied his motion to suppress. Salas-

Garcia entered a conditional guilty plea on both counts. Thereafter, Salas-Garcia

sought to withdraw his guilty plea because he did not fully understand the

immigration consequences of his plea. He argued he had an absolute right to

withdraw his plea because the district court had not yet accepted it. The district

court denied his motion to withdraw his guilty plea and sentenced Salas-Garcia to

concurrent terms of sixty months’ imprisonment and a four-year term of

supervised release. We affirm the district court’s denial of Salas-Garcia’s motion

to suppress and dismiss Salas-Garcia’s appeal from the district court’s denial of

his motion to withdraw his guilty plea.

                                I. BACKGROUND

      In September 2009, officers of the Middle Rio Grande Narcotics Task Force

arrested an individual for distributing cocaine. Following his arrest, this

individual became a confidential informant for the Task Force. In late November

2009, the confidential informant identified Edgar Castaneda as a broker of large




                                          2
cocaine sales. 1 Task Force Agent Oscar Villegas then devised a plan for the

confidential informant to arrange a buy of a large quantity of cocaine from

Castaneda.

      On December 2, 2009, the confidential informant reported to Agent Villegas

that Castaneda was ready to deliver one kilogram of cocaine, with the exchange to

take place in the parking lot of Presbyterian Hospital, located at the intersection of

Central Avenue and Cedar Street in Albuquerque, New Mexico. Agent Villegas,

along with Agent Clarence Davis and other members of the Task Force in

unmarked cars, followed Castaneda as he drove a red Chrysler sedan to La Poblana

Tortilleria. Salas-Garcia arrived at the tortilla factory a few minutes later in a red

Dodge truck, and Salas-Garcia and Castaneda drove their vehicles toward

Presbyterian Hospital, mimicking each other’s lane changes. Agents Villegas and

Davis knew from experience that drug traffickers often use two or three vehicles

as a counter-surveillance technique to either elude law enforcement or to prevent

the theft of the drugs they are delivering. Castenada and Salas-Garcia both pulled

into the parking lot of Presbyterian Hospital, and the confidential informant then

reported to Agent Villegas that “the drugs are here.” Aplt. App. at 7-8. Castenada

pulled into the hospital’s Emergency Room parking lot and Salas-Garcia headed



      1
        A cocaine broker does not own the cocaine, but acts as a middleman between the
buyer and the seller. A buyer would contact the broker, and the broker would arrange a
sale between the buyer and the seller. See Aplee. Supp. App. at 138.

                                           3
toward Pediatric Urgent Care on the south side of the hospital. Agent Villegas

observed a female, who appeared to be coming from the hospital, enter Salas-

Garcia’s truck. Agent Villegas then directed marked police units to stop both

Castenada and Salas-Garcia in their respective vehicles.

      Salas-Garcia was stopped by a uniformed officer and was immediately

placed in handcuffs. Agent Villegas arrived on the scene seconds after the stop

occurred and approached the female passenger in the truck that Salas-Garcia was

driving. The passenger told Agent Villegas that the driver of the truck was her ex-

husband, and that he had unexpectedly called to tell her that he would be picking

her up from work. Agent Villegas concluded that she was not involved in the

cocaine transaction and advised Ms. Salas-Garcia that she was free to leave.

Approximately two minutes after Agent Villegas arrived at the hospital, Agent

Davis came to where Salas-Garcia was stopped. At this point, Agent Villegas

turned the investigation over to Agent Davis, and Agent Villegas returned to his

office to initiate procurement of a search warrant. Agent Davis informed Salas-

Garcia that he was not under arrest and that the officers were conducting an

investigation. Officers patted down Salas-Garcia while he remained in handcuffs,

and Salas-Garcia agreed to stay and cooperate with the investigation. After

conferring with Agent Villegas via radio, Agent Davis instructed the patrol officer

to remove Salas-Garcia’s handcuffs, which he had been wearing for approximately

four to ten minutes. Salas-Garcia then sat on a nearby curb. Agent Villegas also

                                         4
informed Agent Davis that he had requested a drug-sniffing K-9 unit because he

was unsure which vehicle was carrying the drugs. After inspecting Salas-Garcia’s

driver’s license, Agent Davis recognized his name from an independent Drug

Enforcement Agency (DEA) investigation regarding suspected drug trafficking.

Agent Davis then contacted DEA Agent Jeffrey Mauldin, and when Agent Mauldin

arrived at the scene approximately ten minutes after he was alerted of the stop,

Salas-Garcia was no longer in handcuffs.

      Agent Davis informed Salas-Garcia that he wanted to ask some

“investigatory questions.” Id. at 9. Agent Davis advised Salas-Garcia of his

Miranda rights in Spanish. Salas-Garcia stated that he understood his rights and

agreed to speak with Agent Davis without the presence of an attorney. Agent

Davis’s gun was not displayed, and neither the uniformed patrol officer nor Agent

Mauldin were in the immediate vicinity.

      Agent Davis asked Salas-Garcia if he had any drugs with him. Salas-Garcia

responded, “yes.” Id. at 10. Agent Davis asked where the drugs were, and Salas-

Garcia answered that they were in his truck. When asked about the quantity of

drugs in the truck, Salas-Garcia answered, “a kilo.” Id. Agent Davis asked if the

drugs were cocaine, and Salas-Garcia said, “I think so.” Id. Salas-Garcia stated

the drugs were located near the center of the truck “with the tortillas and chilies

from the store.” Id. Salas-Garcia also stated that he was delivering the drugs for

another person and was to receive $400 for transporting the drugs to the hospital.

                                           5
      Agent Villegas sought and obtained a search warrant for the red Dodge

truck. After conducting a search of the truck, officers found a brick of cocaine in

the center of the second row seats in a bag containing chilies. Following this

discovery, Salas-Garcia was then arrested and subsequently charged.

      In district court, Salas-Garcia sought to suppress the physical evidence and

statements obtained as a result of his seizure on December 2, 2009, and the search

of the red Dodge truck. The district court denied Salas-Garcia’s motion to

suppress.

      On January 7, 2011, Salas-Garcia appeared before a magistrate judge and

entered a conditional plea of guilty to both counts in the indictment. In the plea,

Salas-Garcia reserved the right to appeal the denial of his motion to suppress. The

plea agreement also described the immigration consequences of his plea. Salas-

Garcia is a legal permanent resident of the United States, and deportation to his

home country is presumptively mandatory because he is pleading guilty to two

aggravated felonies.

      Salas-Garcia then retained new counsel and sought to withdraw his guilty

plea on grounds that the district court had not yet accepted his guilty plea and that

he did not fully understand the immigration consequences of his plea. After a

hearing, the district court denied the motion. The district court sentenced Salas-

Garcia to a term of sixty months’ imprisonment followed by a term of supervised

release of four years. Salas-Garcia appeals the district court’s denial of his motion

                                          6
to suppress and the district court’s denial of his motion to withdraw his guilty plea.

                                 II. DISCUSSION

A.    Motion to Suppress

      Salas-Garcia argues that the officers exceeded the scope of the Terry stop

and lacked probable cause to handcuff and detain him prior to questioning.

Accordingly, Salas-Garcia argues, his responses to the subsequent questioning and

the drugs seized from the truck were fruits of the poisonous tree and should be

suppressed. “The poisonous tree doctrine allows a defendant to exclude evidence

‘come at by exploitation’ of violations of his Fourth Amendment rights.” United

States v. Jarvi, 537 F.3d 1256, 1259 (10th Cir. 2008) (quoting Wong Sun v. United

States, 371 U.S. 471, 487-88 (1963)).

      In reviewing the denial of a motion to suppress, “‘we view the evidence in

the light most favorable to the government, accept the district court’s findings of

fact unless clearly erroneous, and review de novo the ultimate determination of

reasonableness under the Fourth Amendment.’” United States v. Polly, 630 F.3d

991, 996 (10th Cir. 2011) (quoting United States v. Eckhart, 569 F.3d 1263, 1270

(10th Cir. 2009)).

      1.     Legal Framework

      The Fourth Amendment guarantees “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. A seizure occurs when “a reasonable person

                                          7
would not feel free to leave or disregard the contact.” Lundstrom v. Romero, 616

F.3d 1108, 1119 (10th Cir. 2010) (citing Petersen v. Farnsworth, 371 F.3d 1219,

1221-22 (10th Cir. 2004)). To determine whether a seizure is constitutional, “we

must balance the nature and quality of the intrusion on the individual’s Fourth

Amendment interests against the importance of the governmental interests alleged

to justify the intrusion,” Weigel v. Broad, 544 F.3d 1143, 1162 (10th Cir. 2008)

(quoting Scott v. Harris, 550 U.S. 372, 383 (2007)), where “[t]he reasonableness

of a police officer’s actions is evaluated from the perspective of a reasonable

officer on the scene.” Lundstrom, 616 F.3d at 1120 (citing Holland ex rel.

Overdorff v. Harrington, 268 F.3d 1179, 1188 (10th Cir. 2001)).

      Investigative detentions are Fourth Amendment seizures of limited scope

and duration requiring reasonable suspicion of criminal activity. Id. Under Terry

v. Ohio, 392 U.S. 1 (1968), the court must examine whether the investigative

detention was: (1) “justified at its inception,” and (2) “reasonably related in scope

to the circumstances which justified the interference in the first place.” Id. at 20.

Throughout this analysis, the court is guided by the “touchstone” of

reasonableness. Florida v. Jimeno, 500 U.S. 248, 250 (1991). If the seizure fails

the two-pronged Terry test for an investigative detention, then the seizure becomes

an arrest that must be supported by probable cause. Lundstrom, 616 F.3d at 1120

(citing United States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1227 (10th Cir.

2008)).


                                          8
      In Terry, the Supreme Court held that it is permissible for a police officer to

“search for weapons . . . where he has reason to believe that he is dealing with an

armed and dangerous individual, regardless of whether he has probable cause to

arrest the individual for a crime.” Terry, 392 U.S. at 27. The standard that

permits a reasonable search for weapons is “whether a reasonably prudent man in

the circumstances would be warranted in the belief that his safety or that of others

was in danger,” and that “due weight must be given, not to [the officer’s] inchoate

and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences

which he is entitled to draw from the facts in light of his experience.” Id. In

Arizona v. Johnson, 555 U.S. 323 (2009), the Supreme Court reaffirmed the

holding in Terry and explained that to justify a patdown of the driver or passenger

during a vehicular stop, “the police must harbor reasonable suspicion that the

person subjected to the frisk is armed and dangerous.” Id. at 327.

      2.     Scope of the Stop

      Salas-Garcia does not challenge the legality of the initial stop. Instead,

Salas-Garcia focuses on the second prong of the Terry test and argues that “the

officers exceeded the scope of the Terry stop, and lacked probable cause to

handcuff and detain defendant prior to questioning him.” Aplt. Br. at 16. After he

was stopped by uniformed police officers, Salas-Garcia was handcuffed for

approximately four to ten minutes, and was subject to a patdown search. Salas-

Garcia contends the officers handcuffed him without justification and that the


                                          9
officers lacked probable cause or justification to forcefully detain him. Id.

According to Salas-Garcia, “there are no objective facts that the officers had

reasonable suspicion to be concerned for their safety or probable cause to justify

the more ‘forceful technique’ of handcuffing Mr. Salas-Garcia.” Id. at 17.

Furthermore, he argues that “some particularized justification needs to be present

to justify the handcuffing,” and that “the officers could have simply directed

Salas-Garcia to sit on the curb while they conducted their detention and

investigation.” Aplt. Reply Br. at 6-7.

      The use of handcuffs or placing suspects on the ground during a Terry stop

“do[es] not necessarily turn a lawful Terry stop into an arrest under the Fourth

Amendment.” United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993) (citing

United States v. Merkley, 988 F.2d 1062, 1064 (10th Cir. 1993) (holding that the

police officers’ drawing of firearms and use of handcuffs was reasonable)). See

also Lundstrom, 616 F.3d at 1122 (“Handcuffing may be appropriate during an

investigative detention—an investigative detention does not become unreasonable

just because officers handcuff an individual.”). “Officers may restrain an

individual to ‘maintain the status quo during the course of a Terry stop.’” Morris

v. Noe, 672 F.3d 1185, 1192 (10th Cir. 2012) (quoting Gallegos v. City of Colo.

Springs, 114 F.3d 1024, 1031 (10th Cir. 1997) (quoting United States v. Hensley,

469 U.S. 221, 235 (1985))). But “the use of force such as handcuffs and firearms

is a far greater level of intrusion, and requires the government to demonstrate that


                                          10
‘the facts available to the officer would “warrant a man of reasonable caution in

the belief” that the action taken was appropriate.’” United States v. Melendez-

Garcia, 28 F.3d 1046, 1052 (10th Cir. 1994) (quoting United States v. King, 990

F.2d 1552, 1562 (10th Cir. 1993) (quoting Terry, 392 U.S. at 21-22)).

      Under certain circumstances, the use of handcuffs can amount to an

unreasonable seizure. Whether police conduct was “reasonably related in scope to

the circumstances which justified the interference in the first place,” Terry, 392

U.S. at 20, is a fact-sensitive inquiry and depends on “the totality of circumstances

in a given case.” United States v. Banks, 540 U.S. 31, 36 (2003). Salas-Garcia

cites Melendez-Garcia at length in support of his argument that the use of

handcuffs exceeded the scope of the stop. There are admittedly some factual

similarities between Melendez-Garcia and this case. In Melendez-Garcia, the

defendant alleged that the government seized marijuana evidence in violation of

his Fourth Amendment rights and sought to suppress the evidence. The defendant

argued that he and his co-defendant had been illegally arrested without probable

cause and that his co-defendant’s consent to search of the vehicle was tainted by

the illegal arrest. Melendez-Garcia, 28 F.3d at 1050. In Melendez-Garcia, DEA

officers learned from a confidential informant that a transport of marijuana was

planned, and officers set up surveillance of the address provided by the

confidential informant. DEA officers followed the defendant and the co-defendant

as they left the provided address, and the officers then summoned marked police


                                         11
cars to stop the defendant’s vehicle. Id.

      However, the factual similarities between Melendez-Garcia and this case

end there. In Melendez-Garcia, the officers conducted a “felony stop,” where the

officers pulled out their weapons and pointed them at the defendant’s car, told the

occupants of the cars to throw out their keys and put their hands out, and told them

to exit the vehicles one at a time and walk backwards toward the officers. Id. The

officers then handcuffed and frisked the individuals. Id. This court held that the

stop was not justified under the Terry doctrine:

      The government does not explain or offer evidence to support an
      explanation why the officers . . . needed to execute a ‘felony stop’
      when they outnumbered the defendants, executed the stop on an open
      highway during the day, had no tips or observations that the suspects
      were armed or violent, and the defendants had pulled their cars to a
      stop off the road and stepped out of their cars in full compliance with
      police orders.

Id. at 1053. Based on the totality of circumstances, the “quantum of force” used to

seize the defendant was not reasonably necessary to promote safety. Id.

      By contrast, the officers in this case acted reasonably under the totality of

circumstances. The “quantum of force” used to detain Salas-Garcia was

reasonable under the circumstances. The officers in this case did not conduct a

felony arrest of Salas-Garcia. As Agent Davis explained in his testimony, a felony

stop is “a very heightened state of readiness” by the police, where the officers

arrive in “several units with guns drawn, giving specific orders to an occupant of a

vehicle to do certain things.” Aplee. Supp. App. at 96. But in this case, the patrol


                                            12
officers were only given instructions “to stop the car.” Id. As the district court

noted, there is nothing in the record that suggests that the patrol officer who

stopped Salas-Garcia “drew or displayed his weapon, forced Defendant to the

ground, or employed restraints other than handcuffs.” Aplt. App. at 16-17.

      Given the limited amount of information that the Task Force agents and

uniformed patrol officers had regarding Salas-Garcia, placing him in handcuffs

was reasonable under the circumstances to ensure both officer and public safety.

We have noted that “‘[a]n officer in today’s reality has an objective, reasonable

basis to fear for his or her life every time a motorist is stopped.’” United States v.

Albert, 579 F.3d 1188, 1194 (10th Cir. 2009) (quoting United States v. Holt, 264

F.3d 1215, 1223 (10th Cir. 2001) (en banc), abrogated on other grounds by United

States v. Stewart, 473 F.3d 1265, 1268-69 (10th Cir. 2007)). In order to ensure the

safety of police officers, the Supreme Court has held that “limited intrusion[s]” are

reasonable when officers have reason to fear for their safety. Adams v. Williams,

407 U.S. 143, 147-48 (1972). See also United States v. Gama-Bastidas, 142 F.3d

1233, 1240 (10th Cir. 1998) (“[T]he use of firearms, handcuffs, and other forceful

techniques are justified only by probable cause or when the circumstances

reasonably warrant such measures.”) (quotations and citations omitted). Further,

this court has recognized following the issuance of Melendez-Garcia that “[a]

connection with drug transactions can support a reasonable suspicion that a suspect

is armed and dangerous.” United States v. Garcia, 459 F.3d 1059, 1064 (10th Cir.


                                          13
2006). See also Albert, 579 F.3d at 1194 (concluding that evidence of drug

possession further elevated the danger of the police-suspect encounter); United

States v. Johnson, 364 F.3d 1185, 1194-95 (10th Cir. 2004) (recognizing that drug

dealing is a crime “typically associated with some sort of weapon, often guns”).

The officers in the present case knew that the drug transaction was to involve one

kilogram of cocaine, and given the large amount and value of drugs to be

exchanged, it was reasonable for the officers to believe that the parties may be

armed. See Aplee. Supp. App. at 95 (Agent Davis testifying that he has seen

“hundreds and hundreds of times” that “drugs and guns go hand in hand”). See

also United States v. Coslet, 987 F.2d 1493, 1495 (10th Cir. 1993) (“Guns are a

ubiquitous part of the drug trade, facilitating transactions by providing protection

to dealers, drugs and money.”).

      Agent Davis explained in his testimony that the patrol officers were ordered

to stop the truck because the truck was involved in a drug transaction. The

officers knew from their observations and experience that the drug transaction

involved a sophisticated, two-car operation. The officers were informed by the

confidential informant that one of the vehicles that they were following—either the

red Dodge truck driven by Salas-Garcia or the red Chrysler driven by

Castaneda—carried one kilogram of cocaine. The officers also knew that the drug

transaction was to take place in the parking lot of Presbyterian Hospital and that

the drugs had arrived at the parking lot. See Aplt. App. at 7-8 (noting that the


                                         14
confidential informant reported to the officers that “the drugs are here” when the

two vehicles arrived at the hospital). However, the officers did not know which

vehicle carried the one kilogram of cocaine or whether any of the occupants of the

vehicles were armed. And although the officers knew that Castaneda was the

broker in the drug transaction, they did not know the identity of the seller. The

presence of Ms. Salas-Garcia, whom Agent Villegas observed getting into the red

Dodge truck driven by Salas-Garcia, only added to the uncertainty and confusion

of the scene.

      The officers also had reason to handcuff Salas-Garcia on the basis of public

safety. See Chandler v. Miller, 520 U.S. 305, 323 (1997) (“[W]here the risk to

public safety is substantial and real, blanket suspicionless searches calibrated to

the risk may rank as ‘reasonable.’”); King, 990 F.2d at 1560 (“[A] police officer

may have occasion to seize a person, as the Supreme Court has defined the term

for Fourth Amendment purposes, in order to ensure the safety of the public and/or

the individual, regardless of any suspected criminal activity. The fact that the

officer may not suspect the individual of criminal activity does not render such a

seizure unreasonable per se.”) (citations omitted). When Castenada and Salas-

Garcia arrived at the hospital, the two split up, such that Castenada pulled into the

Emergency Room parking lot and Salas-Garcia headed toward Pediatric Urgent

Care. The events transpired in the middle of the day, when several people were

entering and leaving the parking lot of a busy hospital. According to Agent


                                          15
Villegas’s testimony, the officers’ stop of Salas-Garcia had caused a commotion

and traffic jam at the hospital because the route that Salas-Garcia took was one of

the main routes toward the entrance of the hospital. Presbyterian Hospital security

also arrived at the scene to investigate the situation. Given that the patrol officers

knew that the stop involved a large drug transaction, it was not unreasonable for

the officers to “exercise an amount of caution” while detaining Salas-Garcia, so to

ensure both officer and public safety. Aplee. Supp. App. at 96. 2

      Salas-Garcia was only handcuffed for four to ten minutes, and he was

subsequently released when the officers discovered that he was not armed and was

cooperating with the police investigation. See id. at 151. An investigative

detention becomes an unlawful arrest when there is no longer a reasonable basis to

keep a suspect in handcuffs. United States v. Shareef, 100 F.3d 1491, 1508 (10th

Cir. 1996). Here, the officers released Salas-Garcia from handcuffs as soon as

they learned that he was not a safety risk. Aplee. Supp. App. at 71. Under the

facts presented here, the officers’ brief detention of Salas-Garcia in handcuffs did

not become an unlawful arrest. See, e.g., United States v. Sharpe, 470 U.S. 675,

687-88 (1985) (holding that a twenty minute detention was reasonable and

necessary for law enforcement officers to conduct a limited investigation of the



      2
        Contrast the officers’ reasonable concern for public safety in this case with the
underlying facts in Melendez-Garcia. The officers in this case detained Salas-Garcia in a
busy hospital parking lot, whereas the officers in Melendez-Garcia conducted a felony
stop on an open highway.

                                           16
suspected criminal activity); Albert, 579 F.3d at 1191, 1195 (holding that placing

the defendant in handcuffs for twenty minutes was reasonable and did not elevate

the detention into an arrest).

       In sum, placing Salas-Garcia in handcuffs was reasonable under the

circumstances, and his detention was not an arrest that must be supported by

probable cause. The handcuffing of Salas-Garcia did not exceed the bounds of an

investigatory detention and thus he was not illegally arrested. Consequently, there

is no basis for suppressing his statements to law enforcement or the drugs seized

from the truck as fruits of the poisonous tree.

       B.     Motion to Withdraw Guilty Plea

       Salas-Garcia pled guilty before a magistrate judge, but he argues he should

be allowed to withdraw his guilty plea because his plea had not been accepted, and

that he did not fully comprehend the immigration consequence of his plea. 3 When

there is a question of whether the district court has actually accepted the

defendant’s guilty plea pursuant to Federal Rule of Criminal Procedure 11, we

review the issue de novo. Byrum, 567 F.3d at 1259.

       Salas-Garcia argues that there is ambiguity as to whether the district court



       3
         Citing United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004), the
government contends that Salas-Garcia has waived his right to appeal the district court’s
denial of his motion to withdraw his guilty plea by virtue of the plea agreement. To the
extent that Salas-Garcia contests that the district court did not accept his plea and plea
agreement, our review is not precluded by Hahn. See United States v. Byrum, 567 F.3d
1255, 1258 n.2 (10th Cir. 2009).

                                            17
had subsequently accepted his plea or had deferred acceptance of his plea. Salas-

Garcia contends that the district court ruled that his guilty plea had been accepted,

but that the district court had also “deferred” acceptance of the plea. Aplt. Br. at

30. According to Rule 11(d), “[a] defendant may withdraw a plea of guilty or nolo

cotendere before the court accepts the plea, for any reason or no reason.” Salas-

Garcia argues that if the district court had not accepted his plea pursuant to Rule

11(d), then he has an absolute right to withdraw the plea.

      Magistrate judges have the authority to conduct plea hearings and accept

guilty pleas. United States v. Ciapponi, 77 F.3d 1247, 1251 (10th Cir. 1996)

(“[W]e hold that, with a defendant’s express consent, the broad residuary

‘additional duties’ clause of the Magistrates Act authorizes a magistrate judge to

conduct a Rule 11 felony plea proceeding, and such does not violate the

defendant’s constitutional rights.”). Salas-Garcia expressly consented to pleading

guilty before the magistrate judge. See Aplee. Supp. App. at 206 (“The Defendant,

Mr. Salas, has signed a consent to proceed before a magistrate judge in a felony

case.”). In the plea proceeding before the magistrate judge, Salas-Garcia pled

guilty and the magistrate judge accepted his guilty plea. Id. at 218-19 (“Based on

these findings I accept your pleas of guilty and adjudge you guilty of the offenses

charged in Count One and Count Two of the Indictment.”). Salas-Garcia does not

challenge the district court’s conclusion that the magistrate judge had authority to

accept a guilty plea.


                                          18
      Instead, Salas-Garcia points to ambiguity in the district court’s language at

the subsequent hearing on the motion to withdraw, where the district court

explained, “[Byrum] concludes that the magistrate court may defer acceptance of a

plea agreement even while accepting a plea. I conclude that that’s exactly what

happened here.” Id. at 228. In Byrum, we held that the district court may

conditionally accept the defendant’s guilty plea, while deferring acceptance of the

plea agreement pending review of the presentence report. Byrum, 567 F.3d at

1262 (“In sum, we conclude where a district court conducts a Rule 11 plea

colloquy and then provisionally or conditionally accepts the defendant’s guilty

plea pending its review of the PSR, the district court has accepted the plea for the

purposes of Rule 11.”). In determining whether a plea has been accepted, “what

matters ultimately is the language of the trial court and the context in which it is

used.” Id. at 1261. Here, the magistrate judge was clear in accepting Salas-

Garcia’s guilty plea; there is no indication that Salas-Garcia’s guilty plea was

accepted on a “conditional” or “provisional” basis. And under Byrum, even if the

magistrate judge had deferred acceptance of the plea agreement itself, the

magistrate judge accepted Salas-Garcia’s plea for the purposes of Rule 11.

Consequently, Salas-Garcia is not entitled to withdraw his guilty plea as an

absolute right.

      Salas-Garcia further argues that even if the district court had accepted his

guilty plea, there is a fair and just reason to withdraw his plea pursuant to Rule


                                          19
11(d)(2)(B), which states that “[a] defendant may withdraw a plea of guilty or nolo

contendere . . . after the court accepts the plea, but before it imposes sentence if

. . . the defendant can show a fair and just reason for requesting the withdrawal.”

The government contends that Salas-Garcia did not reserve the right in his plea

agreement to challenge the district court’s denial of his motion to set aside his

guilty plea, and as a result, he cannot appeal this issue with this court.

Whether an issue is within the scope of an appellate waiver is a legal question that

this court reviews de novo. Hahn, 359 F.3d at 1325. We have adopted a three-

prong analysis to review appeals brought after a defendant has entered into an

appeal waiver: “(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.” Id. Where an appeal of a denial of a motion to withdraw a

guilty plea falls within the plain language of an appeal waiver provision, we have

applied Hahn and enforced the waiver. See, e.g., United States v. Leon, 476 F.3d

829, 832 (10th Cir. 2007) (per curiam).

      Under the first prong of the Hahn test, Salas-Garcia’s appeal of the district

court’s denial on his motion to withdraw his guilty plea falls within the scope of

his waiver of appellate rights. In determining the scope of a waiver, the court

“narrowly construe[s] the scope of . . . waiver of appellate rights . . . [but] ‘will

hold a defendant to the terms of a lawful plea agreement.’” Hahn, 359 F.3d at


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1328 (citation omitted) (quoting United States v. Atterberry, 144 F.3d 1299, 1300

(10th Cir. 1998)). Salas-Garcia entered into a conditional guilty plea, reserving

his right to appeal the district court’s order denying his motion to suppress. Aside

from reservation of his right to appeal the motion to suppress, Salas-Garcia signed

a broad waiver of appellate rights.4 Salas-Garcia did not reserve the right to

appeal the denial of a motion to withdraw his guilty plea.

      For the second prong of the Hahn test, the court will “only enforce appeal

waivers that defendants enter into knowingly and voluntarily.” Id. at 1328-29

(citing United States v. Elliot, 264 F.3d 1171, 1173 (10th Cir. 2001)). Under this

factor, the court examines whether the language of the plea agreement states that

the defendant entered the agreement knowingly and voluntarily, and whether there

was an adequate Federal Rule of Criminal Procedure 11 colloquy. Id. at 1325.

The defendant has the burden to prove that he did not knowingly and voluntarily

enter into his plea agreement. Id. at 1329. Salas-Garcia claims that he was “not

completely aware of the entirety of the immigration consequences to the plea

agreement.” Aplt. Br. at 27. However, the record reveals that the immigration



      4
              [T]he Defendant knowingly waives the right to appeal the
              Defendant’s conviction(s) and any sentence at or under the
              maximum statutory penalty authorized by law. In addition,
              the Defendant agrees to waive any collateral attack to the
              Defendant’s conviction(s) pursuant to 28 U.S.C. § 2255,
              except on the issue of counsel’s ineffective assistance in
              negotiating or entering this plea or this waiver.
Aplt. App. at 27.

                                           21
consequences of his guilty plea could not have been clearer. The plea agreement

that Salas-Garcia entered into explicitly explains the immigration consequences of

a guilty plea:

      [P]leading guilty may have consequences with respect to Defendant’s
      immigration status if Defendant is not a citizen of the United
      States. . . . Indeed, because Defendant is pleading guilty to two
      aggravated felonies, removal is presumptively mandatory. . . .
      Defendant nevertheless affirms that Defendant wants to plead guilty
      regardless of any immigration consequences that Defendant’s plea
      may entail, even if the consequence is Defendant’s automatic removal
      from the United States.

Aplt. App. at 27. Salas-Garcia also expressed understanding of the immigration

consequences of a guilty plea at his plea hearing:

      THE COURT: Do you understand that deportation is a consequence of
      your conviction?
      THE DEFENDANT: Yes, sir.

Aplee. Supp. App. at 213. Given the language of the plea agreement and the plea

colloquy at the plea hearing, we conclude Salas-Garcia knowingly and voluntarily

entered into the plea agreement.

      Under the final factor of Hahn, the court will enforce an appellate waiver

unless it finds that “the enforcement of the waiver would constitute a miscarriage

of justice.” Hahn, 359 F.3d at 1329. To constitute a miscarriage of justice, the

waiver must fall in one of the following four categories: “where the district court

relied on an impermissible factor such as race, where ineffective assistance of

counsel in connection with the negotiation of the waiver renders the waiver

invalid, where the sentence exceeds the statutory minimum, or where the waiver is

                                         22
otherwise unlawful.” Elliot, 264 F.3d at 1173. There is no evidence in the record

to support any of these circumstances. We dismiss Salas-Garcia’s appeal from the

district court’s denial of his motion to withdraw his guilty plea as barred by Hahn.

      We AFFIRM the district court’s denial of Salas-Garcia’s motion to suppress

and DISMISS Salas-Garcia’s appeal from the district court’s denial of his motion

to withdraw his guilty plea.




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