                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                        July 2, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                   No. 06-4285
                                                  (D.C. No. 2:06-CR-30-TC)
    JAM IE FRIAS-FERNA ND EZ,                             (D. Utah)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before O’BRIEN, T YM KOV ICH, and GORSUCH, Circuit Judges.




         Defendant Jamie Frias-Fernandez pleaded guilty to illegal reentry following

removal in violation of 8 U.S.C. § 1326. His plea agreement states that he

“knowingly, voluntarily and expressly waive[s] [his] right to appeal any sentence

imposed . . . and the manner in which the sentence is determined, on any of the

grounds set forth in [18 U.S.C. § 3742] or on any ground whatever, except . . .




*
      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 This order and judgment is not binding precedent, except under the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.
[for] a sentence above the maximum penalty provided in the statutes of conviction

as set forth in [the plea agreement], or an upward departure above the high end of

the Guideline range determined by the Court to apply to [him] and the facts of

[his] case.” M ot. to Enforce, Attach. A (Statement by Def. in Advance of Plea of

Guilty), at 3. The district court determined a Guideline range of 63 to 78 months

and imposed a sentence of 63 months, well within the 20-year statutory maximum

recited in the plea agreement and at the low-end of the Guideline range.

Nonetheless, defendant appealed and the government has now moved to enforce

defendant’s appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir.

2004) (en banc; per curiam). W e 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 unlaw ful.

Id. at 1327. Defendant does not dispute that his plea, along with his waiver of

appeal rights, was knowingly and voluntarily entered or that his appeal falls

within the terms of the appeal waiver he accepted.

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      Defendant first contends that the government's motion to enforce the appeal

waiver was untimely filed under 10th Cir. R. 27.2(A)(3), which provides that “[i]f

possible,” such motions “must be filed within 15 days after the notice of appeal is

filed.” The cited rule also allows for late filing “upon a showing of good cause,”

and, upon review of the government’s motion and its reply to defendant’s

response, we conclude that cause has been shown for the delayed filing here.

      Defendant next contends that a miscarriage of justice will occur if this

appeal is dismissed because the fast-track plea agreement he entered denied him

his right to allocution. This claim is factually without merit. It is clear from the

record that the district court permitted defendant to speak at his sentencing

hearing to mitigate the sentence. See M ot. to Enforce, Attach. C at 2-4. Thus,

defendant w as not denied his right of allocution. See Fed. R. Crim. P.

32(i)(4)(A)(ii).

      The government’s motion is GRANTED and the appeal is DISM ISSED.

The mandate shall issue forthwith.




                                        ENTERED FOR THE COURT
                                        PER CURIAM




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