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

                            FOR THE TENTH CIRCUIT                         November 13, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 19-1232
                                                   (D.C. No. 1:17-CR-00235-PAB-1)
 JOHNNY JOE JUAREZ,                                            (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, LUCERO, and HARTZ, Circuit Judges.
                   _________________________________

      Johnny Joe Juarez pleaded guilty to drug trafficking and firearm crimes. He

was sentenced to 180 months’ imprisonment, which was well below the advisory

guideline range. Although his plea agreement contained a waiver of his right to

appeal, he filed a notice of appeal. The government then filed a motion to enforce

the appeal waiver in the plea agreement pursuant to United States v. Hahn, 359 F.3d

1315, 1328 (10th Cir. 2004) (en banc) (per curiam). We grant the government’s

motion and dismiss the appeal.




      *
         This order and judgment is not binding precedent, except under the doctrines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.
      In ruling on 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. Juarez, however, does not address any of these factors. Instead, he claims the

appeal waiver is unenforceable because the one-sided nature of the waiver renders

the plea agreement unconscionable and because the government intended and/or

attempted to breach the plea agreement.

      We can easily dispose of Mr. Juarez’s first argument that the plea agreement is

unconscionable because, as he acknowledges, “[a] panel of this Court has issued a

decision rejecting this argument,” Resp. at 3 (citing United States v. Miles, 902 F.3d

1159 (10th Cir. 2018)). It is well-established that “[w]e cannot overrule the

judgment of another panel of this court” and “[w]e are bound by the precedent of

prior panels absent en banc reconsideration or a superseding contrary decision by the

Supreme Court.” In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per curiam). Based

on our decision in Miles, 902 F.3d at 1160-61, we reject Mr. Juarez’s argument that

the plea agreement is unconscionable because it contains a non-mutual appeal waiver.

      As for his second argument, Mr. Juarez contends that the government

“attempted to breach the plea agreement,” Resp. at 3, and “intended to breach the

plea agreement,” id. at 4, by making an argument at sentencing that appeared to

support a four-level increase for his role as an organizer or leader in the offense when

the government had stipulated in the plea agreement that Mr. Juarez should only

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receive a two-level increase for that conduct. Mr. Juarez concedes, however, that

“the district court ruled in favor of the defense on this issue.” Id.

      At the conclusion of the sentencing hearing, the district court applied the

two-level increase consistent with the government’s stipulation and the terms of the

plea agreement. Mr. Juarez therefore received the benefit he bargained for under the

plea agreement. Given these circumstances, the government’s alleged intent or

attempt to breach the plea agreement provides no basis to prevent enforcement of the

appeal waiver in the plea agreement.

      For the foregoing reasons, we grant the government’s motion to enforce the

appeal waiver and dismiss the appeal.


                                             Entered for the Court
                                             Per Curiam




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