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

                             FOR THE TENTH CIRCUIT                         August 29, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                        No. 16-6126
                                                  (D.C. No. 5:15-CR-00162-F-1)
RODOLFO SANTIAGO-VILLANUEVA,                              (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, LUCERO, and PHILLIPS, Circuit Judges.
                  _________________________________

      Rodolfo Santiago-Villaneuva pled guilty to possession with intent to distribute

50 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1). The

court sentenced him to 151 months in prison, which was at the bottom of the

151-to-188-month advisory range, followed by four years of supervised release.

Mr. Santiago signed a plea agreement that included a broad waiver of appellate

rights, including the right to appeal his sentence unless the court departed upwards

from the applicable sentencing guideline range. Although no such departure

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
occurred, Mr. Santiago seeks to challenge his sentence as excessive through this

appeal.

      The government has moved to enforce the appeal waiver under United States

v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). In evaluating a

motion to enforce a waiver 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

government’s motion addresses each of these conditions and why they are satisfied.

      In his response, Mr. Santiago concedes, through his counsel, that the

government has established the first two Hahn factors. See Resp. at 1-2 (“Counsel

for Mr. Santiago recognizes this appeal appears to fall within the scope of the appeal

waiver because the term of imprisonment imposed (151 months) was within the

advisory guideline range determined applicable by the district court. Counsel further

recognizes Mr. Santiago’s waiver of appellate rights both on paper and in open court,

thoroughly described in the plaintiff-appellee’s motion, appears to satisfy this

Circuit’s standard for ‘knowing and voluntary.’” (citations omitted)).

      Mr. Santiago challenges only the third factor: he asserts that enforcing the

appellate waiver will result in a miscarriage of justice. To demonstrate that is the

case, he must show one of the following: (1) the district court relied on an

impermissible factor such as race; (2) he received ineffective assistance of counsel in

connection with the negotiation of the waiver, rendering the waiver invalid; (3) the

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sentence exceeded the statutory maximum; or (4) the waiver is otherwise unlawful.

See Hahn, 359 F.3d at 1327; see also United States v. Anderson, 374 F.3d 955, 959

(10th Cir. 2004) (“The burden rests with the defendant to demonstrate that the appeal

waiver results in a miscarriage of justice.”).

      Mr. Santiago states that the district court relied on an impermissible factor in

imposing his sentence—namely, race or “cultural bias.” See Resp. at 2. When

Mr. Santiago was 20 years old, he was in a relationship with a 15-year-old that

resulted in a criminal conviction in California for unlawful sexual intercourse (sex

with a minor three-plus years younger), which was listed in the Presentence

Investigation Report. The district court referenced this relationship during

sentencing and referred to the 15-year-old as a “child.” R., Vol. III at 49.

Mr. Santiago alleges that the district court’s references were inappropriate because

they evince a lack of comprehension of social dynamics in Hispanic cultures or a

personal disapproval of the same.

      Taken in context, however, it is clear that the references to Mr. Santiago’s

relationship with a “child” during sentencing were part of a valid character

assessment that did not center on race or cultural bias:

      I intend to impose a sentence at the bottom of the advisory guideline
      range, 151 months, and here is the reason for that: The defendant’s
      actions give me no basis upon which to credit his words instead of being
      persuaded by his actions. I’ve got before me a defendant who a little
      short of ten years ago, while illegally in this country, he made a child
      pregnant. He was then removed [on four separate occasions from
      December 2006 to December 2008.].



                                            3
      So we’ve got an individual who was intent on violating the laws of this
      country, all the while leaving behind a child he had impregnated. And
      then while back in this country, for the most recent time, . . . this
      defendant made himself an integral part of a group that was engaged in
      distributing a substance that ruins lives and families, all of which causes
      me to have none of this talk about good values and a desire to make an
      honest living.

Id. Thus, Mr. Santiago has not established that the district court relied on an

impermissible factor like race such that enforcing the appeal waiver would result in a

miscarriage of justice.

      For these reasons, we grant the government’s motion to enforce and dismiss

the appeal.


                                            Entered for the Court


                                            Per Curiam




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