                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS March 1, 2012

                            FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 11-4150
                                               (D.C. No. 1:10-CR-00156-DAK-3)
    JOSE DAVID VILLEGAS,                                   (D. Utah)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before HARTZ, O’BRIEN, and HOLMES, Circuit Judges.



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

appeal, Jose David Villegas pleaded guilty to one count of possession of more

than 500 grams of methamphetamine with intent to distribute, a violation of

21 U.S.C. § 841(a)(1). He and the government agreed on a stipulated sentence of

180 months in prison, which the district court duly imposed. Notwithstanding the



*
      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 This order and judgment is not binding precedent, except under the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.
waiver, Mr. Villegas appealed. The government now has moved to enforce the

appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004)

(en banc) (per curiam).

      Under Hahn, in evaluating a motion to enforce a waiver, 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. Villegas’s counsel has filed a response stating that he

cannot identify any non-frivolous argument regarding these factors. Counsel also

moved to withdraw. We gave Mr. Villegas the opportunity to file a pro se

response; as of today’s date, we have not received anything from him.

      We have conducted an independent review of the Hahn factors.

Mr. Villegas’s docketing statement lists one issue for appeal – that his “[s]entence

was imposed in violation of law.” Docketing Statement at 3. This issue falls

within the scope of the waiver, which covers “[his] right to appeal any sentence

imposed upon [him], and the manner in which the sentence is determined . . . on

any ground whatever,” except explicit grounds not implicated here. Mot. to

Enforce, Attach. A at 4. As for the second factor, the plea agreement clearly sets

forth the waiver and states that it was knowing and voluntary, and the district

court discussed the waiver and voluntariness at the plea hearing. There is no

contradictory evidence indicating that Mr. Villegas did not knowingly and

                                        -2-
voluntarily accept the waiver. 1 Finally, there is no indication that enforcing the

waiver would result in a miscarriage of justice as that term in defined in Hahn,

359 F.3d at 1327.

      Counsel’s motion to withdraw is GRANTED. The motion to enforce is

GRANTED and this matter is DISMISSED.



                                       ENTERED FOR THE COURT
                                       PER CURIAM




1
       As the government acknowledges, during sentencing the prosecution
erroneously informed the court that there was no appeal waiver, and the court
informed Mr. Villegas that he had the right to appeal his sentence. Mot. to
Enforce, Attach. C at 4, 6. “But a district court’s statement that a defendant has
the right to appeal does not necessarily negate a waiver-of-appeal provision
contained in a plea agreement when the defendant enters into that agreement prior
to the court’s statement.” United States v. Smith, 500 F.3d 1206, 1211 (10th Cir.
2007). “This is especially true when, after informing the defendant that he has
appellate rights, the court does not ask defendant whether he understands the
description of those rights,” id., as happened here. Accordingly, the district
court’s inaccurate statement at sentencing does not mean that Mr. Villegas’s
waiver was unknowing or involuntary.

                                         -3-
