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

                            FOR THE TENTH CIRCUIT                          February 20, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-1442
                                                   (D.C. No. 1:17-CR-00374-RM-1)
 JESUS ISMAEL SOTO-SOTO,                                      (D. Colo.)
 a/k/a Shards,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before TYMKOVICH, Chief Judge, MATHESON and EID, Circuit Judges.
                 _________________________________

      Jesus Ismael Soto-Soto pleaded guilty to one count of possession with intent to

distribute 5 grams or more of methamphetamine (actual) and 50 grams or more of a

mixture and substance containing methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(B)(viii). The district court sentenced him to 87 months in prison,

a sentence below the forty-year statutory maximum penalty for his offense. See

21 U.S.C. § 841(b)(1)(B)(viii).




      *
         This order and judgment is not binding precedent, except under the doctrines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.
      Although Mr. Soto-Soto’s plea agreement contained a waiver of his appellate

rights, he filed a notice of appeal. The government has moved to enforce the appeal

waiver in the plea agreement pursuant to United States v. Hahn, 359 F.3d 1315

(10th Cir. 2004) (en banc) (per curiam).

      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 government asserts that all of the

Hahn conditions have been satisfied because: (1) Mr. Soto-Soto’s appeal is within the

scope of the appeal waiver; (2) he knowingly and voluntarily waived his appellate

rights; and (3) enforcing the waiver would not result in a miscarriage of justice.

      In response to the government’s motion, Mr. Soto-Soto concedes that his

appeal waiver is enforceable under the standards set forth in Hahn, and he agrees that

his appeal should be dismissed. Accordingly, we grant the government’s motion to

enforce the appeal waiver and dismiss the appeal. This dismissal does not affect

Mr. Soto-Soto’s right to pursue post-conviction relief on the grounds permitted in his

plea agreement.


                                            Entered for the Court
                                            Per Curiam




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