                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    August 21, 2008
                     UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                     Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 08-3170
                                              (D.C. No. 5:07-CR-40085-SAC-1)
    NICHOLAS                                              (D. Kan.)
    HERNANDEZ-AGUILAR,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, EBEL, and HOLMES, Circuit Judges.



         Defendant Nicholas Hernandez-Aguilar pleaded guilty to being an illegal

alien who reentered the United States after having been convicted of an

aggravated felony in violation of 8 U.S.C. § 1326(a)(2). His plea agreement

states that he “knowingly and voluntarily waives any right to appeal or

collaterally attack any matter in connection with [his] prosecution, conviction and


*
      This panel has determined unanimously 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 This order and judgment is not binding precedent, except under the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.
sentence.” R. Vol. I, Doc. 34, Plea Agreement at ¶ 11 (attached as an exhibit to

the Motion to Enforce). The agreement further states that “the defendant waives

the right to appeal the sentence imposed in this case except to the extent, if any,

the court departs upwards from the applicable sentencing guideline range

determined by the court.” Id. The district court determined that the advisory

guidelines range was 70 to 87 months and imposed a sentence of 70 months, at

the low end of the range. Defendant filed an appeal from his sentence and the

government has moved to enforce defendant’s appeal waiver under United States

v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). We grant the

motion and dismiss the appeal.

      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

voluntarily waived his appellate rights; and (3) whether enforcing the waiver

would result in a miscarriage of justice.” Id. at 1325. The miscarriage-of-justice

prong requires the defendant to show (a) his sentence relied on an impermissible

factor such as race; (b) ineffective assistance of counsel in connection with the

negotiation of the appeal waiver rendered the waiver invalid; (c) his sentence

exceeded the statutory maximum; or (d) his appeal waiver is otherwise unlawful

and the error “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” Id. at 1327 (quotation omitted). The government’s motion




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addresses these considerations, explaining why none undermines defendant’s

appeal waiver here. We agree.

      Defendant does not contest that his appeal falls within the scope of his

appeal waiver nor does he dispute that he knowingly and voluntarily waived his

appellate rights. Defendant argues that the appeal waiver should not be enforced

for the following reasons:

      [He] asserted before the sentencing court that he believed something
      must be wrong with him since he has returned to this country, having
      no family or assets here. Therefore, he argued for a lower sentence,
      which the lower court rejected. He asserts that enforcement of the
      appeal waiver would result in a miscarriage of justice, and deny him
      the right to present his argument to this Court.

Resp. to Mot. to Enforce at 2.

      This argument makes little sense and it does not address any of the four

sub-factors necessary to make a showing on the miscarriage-of-justice prong.

There is no showing that his sentence relied on an impermissible factor, that his

counsel was ineffective, that his sentence exceeded the statutory maximum or that

his appeal waiver is otherwise unlawful. When he entered into the plea

agreement, defendant knowingly and voluntarily gave up his right to appeal. He

has failed to demonstrate that the enforcement of the appeal waiver would result




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in a miscarriage of justice. Accordingly, the motion to enforce the waiver is

GRANTED and the appeal is DISMISSED.



                                      ENTERED FOR THE COURT
                                      PER CURIAM




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