                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS                  July 25, 2011
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 11-2061
                                               (D.C. No. 1:09-CR-02972-WJ-1)
    JUAN CABELLO-VIZCARA,                                 (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL and KELLY, Circuit Judges.



         Juan Cabello-Vizcara pleaded guilty, pursuant to a plea agreement, to

conspiracy to possess with the intent to distribute heroin in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(B), 846 (count 1); to possession of a firearm in furtherance of

a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (count 11); and

to reentry of a removed alien in violation of 8 U.S.C. § 1326(a)(1) and (2) (count



*
      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 This order and judgment is not binding precedent, except under the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.
12). In accordance with the parties’ Fed. R. Crim. P. 11(c)(1)(C) stipulation in

the plea agreement, the district court sentenced him to 120 months’ imprisonment.

The plea agreement also contained a waiver of Mr. Cabello-Vizcara’s right to

appeal his “convictions and any sentence at or under the maximum statutory

penalty,” Plea Agreement at 7, which was forty years’ imprisonment for count 1,

a mandatory five years’ imprisonment consecutive to any other conviction’s

sentence for count 11, and ten years’ imprisonment for count 12. Despite the

appeal waiver, Mr. Cabello-Vizcara filed a notice of appeal.

      The government has moved to enforce the plea agreement’s appeal waiver

under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc)

(per curiam). Mr. Cabello-Vizcara’s counsel responded, conceding that the

waiver was valid and enforceable. Additionally, citing Anders v. California,

386 U.S. 738 (1967), counsel stated that the appeal presents no legally

non-frivolous issues. 1 We gave Mr. Cabello-Vizcara an opportunity to file a

pro se response to the motion to enforce. To date, he has not done so.

      Nevertheless, we have reviewed independently the plea agreement, the

change of plea hearing transcripts, the sentencing hearing transcript, and the

motion to enforce. After doing so, we conclude that the requirements for


1
      Typically, in an Anders case, counsel requests permission to withdraw
when counsel has conscientiously examined the case and determined that an
appeal would be wholly frivolous. Anders, 386 U.S. at 744. Counsel in this case,
however, has not moved to withdraw.

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enforcing the plea waiver have been satisfied: (1) this “appeal falls within the

scope of the waiver of appellate rights”; (2) Mr. Cabello-Vizcara “knowingly and

voluntarily waived his appellate rights”; and (3) “enforcing the waiver would

[not] result in a miscarriage of justice.” Hahn, 359 F.3d at 1325.

      We therefore GRANT the government’s motion to enforce the appeal

waiver and DISMISS the appeal. 2


                                       ENTERED FOR THE COURT
                                       PER CURIAM




2
      We remind the government of its duty to attach a copy of the plea
agreement to the motion to enforce. See 10th Cir. R. 27.2(A)(2)(b).


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