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

                           FOR THE TENTH CIRCUIT                      August 20, 2013

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

             Plaintiff-Appellee,

v.                                                        No. 13-3102
                                                (D.C. No. 5:11-CR-40045-JAR-1)
CARLOS RUIZ-ARREOLA,                                        (D. Kan.)

             Defendant-Appellant.


                           ORDER AND JUDGMENT*


Before KELLY, TYMKOVICH, and HOLMES, Circuit Judges.


      Carlos Ruiz-Arreola pleaded guilty to conspiracy to distribute 500 grams or

more of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). The

district court sentenced him to 157 months’ imprisonment, accepting the

government’s motion for a downward departure from the guidelines range of 262 to

327 months’ imprisonment. Although his plea agreement stated that he would not


*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
appeal any sentence unless it departed upwards from the guidelines range determined

by the court, Mr. Ruiz-Arreola filed a notice of appeal anyway. His counsel filed an

Anders v. California, 386 U.S. 738 (1967), brief asserting that the appeal was

frivolous.1 In addition to the Anders brief, counsel filed a motion to withdraw. See

id. at 744 (authorizing counsel to request permission to withdraw where counsel

conscientiously examines case and determines that appeal would be wholly

frivolous). This court gave Mr. Ruiz-Arreola an opportunity to file a pro se brief, but

he has not done so. See id.

      After the Anders brief and motion to withdraw were filed, the government

filed a sealed motion to enforce the plea agreement. Although a motion to enforce

typically must be filed within twenty days after the district court transmits the record,

see 10th Cir. R. 27.2(A)(3)(b), we exercise our authority to suspend this rule, see id.

2.1, and we consider the motion to enforce.2

      In evaluating a motion to enforce, 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




1
       Without mentioning the appeal waiver set forth in the plea agreement, the brief
challenged the calculation of the guidelines sentencing range.
2
       In effect, we treat the motion to enforce as the government’s brief on the
merits since the government filed the motion to enforce after Mr. Ruiz-Arreola’s
counsel filed the Anders brief.


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enforcing the waiver would result in a miscarriage of justice.” United States v. Hahn,

359 F.3d 1315, 1325 (10th Cir. 2004).

      Mr. Ruiz-Arreola’s counsel concedes that (1) the appeal falls within the scope

of the waiver; (2) Mr. Ruiz-Arreola knowingly and voluntarily waived his appellate

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

Thus, counsel concludes that the waiver is valid and enforceable and there are no

non-frivolous grounds upon which to challenge Mr. Ruiz-Arreola’s conviction or

sentence.

      Upon our independent review of the parties’ filings, the plea agreement, the

transcript of the plea hearing, and the transcript of the sentencing hearing, we

conclude that Mr. Ruiz-Arreola waived his right to bring this appeal.

      Accordingly, we grant the government’s motion to enforce the plea agreement,

and we dismiss the appeal. We also grant Mr. Ruiz-Arreola’s counsel’s motion to

withdraw.


                                                Entered for the Court
                                                Per Curiam




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