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

                           FOR THE TENTH CIRCUIT                         June 24, 2013

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

             Plaintiff-Appellee,

v.                                                        No. 13-3041
                                                (D.C. No. 5:11-CR-40045-JAR-6)
GILDARDO CABELLO-ALFARO,                                    (D. Kan.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.


      Gildardo Cabello-Alfaro pled guilty to one count of unlawful use of a

communication facility to facilitate the distribution of methamphetamine. He was

sentenced to forty-eight months’ imprisonment, the statutory maximum for his crime.

Mr. Cabello-Alfaro’s plea agreement contained a waiver of his right to appeal from

his conviction or sentence. In spite of this waiver, Mr. Cabello-Alfaro filed a notice


*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
of appeal seeking to challenge his sentence. The government has moved to enforce

the appeal waiver pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)

(per curiam).

      When reviewing 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.” Id. at 1325.

Mr. Cabello-Alfaro’s counsel submitted a response in opposition to the government’s

motion, but she has not addressed the Hahn factors. Instead, she requests that we

deny the motion because of Mr. Cabello-Alfaro’s belief that his sentence is

“excessive.” Resp. at 2. Counsel admits, however, that the sentence was “below his

guideline range and was significantly less than the original statutory mandatory

minimum of 120 months that Mr. Cabello-Alfaro was originally charged with.” Id.

Counsel does not dispute that the appeal falls within the appellate waiver or that

Mr. Cabello-Alfaro knowingly and voluntarily waived his right to appeal. Likewise,

counsel does not contend that enforcing the appellate waiver would result in a

miscarriage of justice.

      Accordingly, we conclude that the Hahn factors support the government’s

position. We therefore grant the motion to enforce the appeal waiver and dismiss this

appeal.

                                                Entered for the Court
                                                Per Curiam

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