                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 7, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 10-4021
                                               (D.C. No. 2:09-CR-00786-CW-1)
    JOEL SERRANO-SANTOS,                                   (D. Utah)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, BRISCOE, and HARTZ, Circuit Judges.


         Defendant Joel Angel Serrano-Santos entered a guilty plea to one count of

being an alien who has re-entered the United States illegally after having been

deported. His plea agreement included a waiver of his right to appeal his

sentence. The district court determined that the applicable sentencing guideline

range was 46 to 57 months and sentenced defendant to 46 months, at the low end

of the range. Despite his appeal waiver, defendant has now filed an appeal


*
      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 This order and judgment is not binding precedent, except under the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.
seeking to challenge his sentence. The government has moved to enforce the

appeal waiver in defendant’s plea agreement pursuant to our decision in United

States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). We grant

the motion and dismiss the appeal.

      In determining whether an appeal should be dismissed based on an appeal

waiver, 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. Defendant “does not dispute that his

appeal was knowingly and voluntarily entered”; he concedes that his “appeal

appears to fall within the terms of the appeal waiver agreed to as part of [his] plea

agreement”; and, he admits that “the record in this case does not disclose any

reasonable basis for finding that enforcement of the plea waiver would result in a

miscarriage of justice.” Resp. to Mot. to Enforce at 1 (quotation omitted).

      Accordingly, defendant has not established any of the applicable exceptions

to the enforcement of his appeal waiver. We therefore GRANT the government’s

motion to enforce the appeal waiver contained in defendant’s plea agreement and

DISMISS the appeal.



                                       ENTERED FOR THE COURT
                                       PER CURIAM


                                         -2-
