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

                            FOR THE TENTH CIRCUIT                          October 31, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-3198
                                                  (D.C. No. 5:17-CR-40043-DDC-1)
 ADOLFO BARRAGAN-RODRIGUEZ,                                   (D. Kan.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, O’BRIEN, and McHUGH, Circuit Judges.
                   _________________________________

      This matter is before the court on the government’s motion to enforce the

appeal waiver contained in Adolfo Barragan-Rodriguez’s plea agreement. We grant

the government motion to enforce the plea agreement and dismiss the appeal.

      Barragan-Rodriguez pleaded guilty pursuant to a plea agreement to “a

violation of 21 U.S.C. § 841(a)(1), namely possession with the intent to distribute

and distribution of methamphetamine.” Mot. to Enforce, Ex. C (Plea Agmt.) at 1.

The statutory maximum penalty for this offense is not less than 120 months’

imprisonment and not more than life imprisonment. See 21 U.S.C. § 841(b)(1)(A).



      *
         This order and judgment is not binding precedent, except under the doctrines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.
In the plea agreement, the parties agreed to a proposed sentence under Fed. R. Crim.

P. 11(c)(1)(C), in “[a] range of 120-192 months in prison, with each party given an

opportunity to argue for a controlling term of imprisonment within the proposed

range.” Plea Agmt. at 3. The district court sentenced Barragan-Rodriguez to 180

months’ imprisonment, five years of supervised release, and imposed a $100 special

assessment.

       The plea agreement included the following waiver of Barragan-Rodriguez’s

appellate rights:

       The defendant knowingly and voluntarily waives any right to appeal or
       collaterally attack any matter in connection with this prosecution, his
       conviction, or the components of the sentence to be imposed herein. . . .
       The defendant is aware that 18 U.S.C. § 3742 affords him the right to
       appeal the conviction and sentence imposed. By entering into this
       agreement, the defendant knowingly waives any right to appeal a sentence
       imposed in accordance with the sentence recommended by the parties under
       Rule 11(c)(1)(C).
Id. at 6-7.

       Despite the appeal waiver, Barragan-Rodriguez has filed a notice of appeal in

which he seeks to challenge the sentence as an abuse of discretion. The government

filed a motion to enforce the plea agreement under United States v. Hahn, 359 F.3d

1315 (10th Cir. 2004) (en banc) (per curiam).

       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

enforcing the waiver would result in a miscarriage of justice.” Id. at 1325.


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      Barragan-Rodriguez concedes that the first two Hahn factors are present—his

proposed appeal falls within the scope of the waiver and he knowingly and

voluntarily waived his appellate rights. His argument is that the “sentence of 180

months imprisonment constitutes a miscarriage of justice based on his age, poor

health, and immigration status. It is also disproportionate to the sentences handed

down to other persons who were convicted in this case.” Resp. at 2. According to

Barragan-Rodriguez, “[a] downward variance below the guideline sentence, but

within the range agreed upon by the parties, was appropriate in this case.” Id. at 2-3.

      Barragan-Rodriguez has the burden to demonstrate that enforcement of his

appeal waiver would result in a miscarriage of justice. See United States v.

Anderson, 374 F.3d 955, 959 (10th Cir. 2004). We will find that enforcement of an

appeal waiver results in a miscarriage of justice only “[1] where the district court

relied on an impermissible factor such as race, [2] where ineffective assistance of

counsel in connection with the negotiation of the waiver renders the waiver invalid,

[3] where the sentence exceeds the statutory maximum, or [4] where the waiver is

otherwise unlawful.” Hahn, 359 F.3d at 1327 (internal quotation marks omitted).

“This list is exclusive: enforcement of an appellate waiver does not result in a

miscarriage of justice unless enforcement would result in one of the four situations

enumerated above.” United States v. Polly, 630 F.3d 991, 1001 (10th Cir. 2011)

(internal quotation marks omitted).

      But Barragan-Rodriguez does not invoke any of the miscarriage-of-justice

factors. As such, there is no miscarriage of justice. See id. at 1002. Further, his

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argument that the appropriate sentence should have below the guidelines, but within

the agreed-upon range, makes no sense. As the district court explained, the plea

agreement allowed any sentence in the range between 120 and 192 months, and the

undisputed guideline period was 188 to 235 months. The sentence Barragan-

Rodriguez says is “appropriate” is the sentence he received because 180 months’

imprisonment is below the guidelines and within the agreed-upon range.

      We agree with the government that Barragan-Rodriguez’s appeal falls within

the scope of his appeal waiver, his waiver was knowing and voluntary, and

enforcement of the waiver will not result in a miscarriage of justice. Accordingly, we

grant the government’s motion to dismiss this appeal.


                                           Entered for the Court
                                           Per Curiam




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