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

                           FOR THE TENTH CIRCUIT                       March 25, 2013

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

             Plaintiff-Appellee,

v.                                                        No. 12-4196
                                             (D.C. No. 2:11-CR-00811-DN-PMW-4)
JOHAN ZUNIGA-TOLEDO,                                       (D. Utah)

             Defendant-Appellant.


                           ORDER AND JUDGMENT*


Before HARTZ, GORSUCH, and HOLMES, Circuit Judges.


      Johan Zuniga-Toledo pleaded guilty to possession with intent to distribute

500 grams or more of methamphetamine and conspiracy to commit money

laundering. He was sentenced to 120 months’ imprisonment and 60 months’

supervised release. Although his plea agreement contained a waiver of his appellate

rights, Mr. Zuniga-Toledo has filed an appeal challenging his sentence. The


*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
government has moved to enforce the 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 (internal quotation marks omitted).

      In his docketing statement, Mr. Zuniga-Toledo—who is represented by

counsel—states that he is raising the following issues on appeal: (1) whether the

district court properly calculated his sentencing guideline range, and (2) whether his

sentence was reasonable. After the government moved to enforce

Mr. Zuniga-Toledo’s appeal waiver, his attorney filed a response, stating that there is

no basis to dispute the government’s motion:

      [His] plea, along with his waiver of appeal rights, was knowingly and
      voluntarily entered. This appeal falls within the explicit terms of the
      appeal waiver he accepted in exchange for the United States’ promises
      in that plea agreement. The United States appears to have complied

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      with its obligations under the agreement . . . . Further, the record in this
      case does not disclose any reasonable basis for asserting that
      enforcement of the plea waiver “would result in a miscarriage of
      justice” as described in United States v. Hahn, 359 F.3d 1315, 1325
      (10th Cir. 2004).

Resp. at 1.

      We agree with counsel that there is no basis for Mr. Zuniga-Toledo to contest

the government’s motion to enforce. Accordingly, 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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