                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES COURT OF APPEALS                   April 25, 2008
                            FOR THE TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 07-6266
                                                 (D.C. No. 07-CR-00094-M-1)
    ESTEBAN DIAZ,                                       (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, McCONNELL, and GORSUCH, Circuit Judges.



         Esteban Diaz pleaded guilty in June 2007 to attempted distribution of

methamphetamine in violation of 21 U.S.C. § 846. He was sentenced to 235

months’ imprisonment, which was below the statutory maximum of 40 years’

imprisonment and at the bottom of the sentencing guideline range determined by

the district court. Although Mr. Diaz pleaded guilty pursuant to a plea agreement



*
      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 This order and judgment is not binding precedent, except under the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.
that contained a waiver of his appellate rights, he has filed an appeal seeking to

challenge his sentence. The government now moves to enforce the appeal waiver

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

curiam). In response, Mr. Diaz contends that the government breached the terms

of the plea agreement, and, therefore, his right to appeal should not be precluded

by the plea agreement’s appeal waiver. Having considered the motion and

response, we grant the motion to enforce and dismiss the appeal.

      Mr. Diaz’s attorney filed a response to the government’s motion to enforce

the appeal waiver stating his belief that there are no meritorious grounds upon

which Mr. Diaz can urge denial of the government’s motion, citing Anders v.

California, 386 U.S. 738, 744 (1967). This court then gave Mr. Diaz an

opportunity to file a pro se response to the motion to enforce. He filed a response

asserting that the appeal waiver should not be enforced because the government

breached the plea agreement. He argues that there was a stipulation in the plea

agreement that he was pleading guilty to mailing one pound of methamphetamine,

but the presentence report and the district court calculated his sentence based on

his attempted sale of five pounds of methamphetamine.

      In his plea agreement, Mr. Diaz “knowingly and voluntarily” agreed to

waive his right to “[a]ppeal or collaterally challenge his guilty plea, sentence and

restitution imposed” or “his sentence as imposed by the Court and the manner in

which the sentence is determined, provided the sentence is within or below the

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advisory guideline range determined by the Court to apply to [his] case.” Mot. to

Enforce, Ex. 2, Plea Agreement at 6. In entering his plea, Mr. Diaz informed the

court that he understood he was waiving his right to appeal any sentence that was

within the advisory guideline range. Mot. to Enforce, Ex. 3, Plea Hr’g Tr. at

14-15.

         “This circuit has held . . . that a[n appeal] waiver provision may be

unenforceable if the government breaches the terms of the Plea Agreement.”

United States v. Guzman, 318 F.3d 1191, 1195 (10th Cir. 2003). “General

principles of contract law define the content and scope of the government’s

obligations under a plea agreement.” United States v. VanDam, 493 F.3d 1194,

1199 (10th Cir. 2007), cert. denied, 128 S. Ct. 945 (2008). “We thus look to the

express language in the agreement to identify both the nature of the government’s

promise and the defendant’s reasonable understanding of this promise at the time

of the entry of the guilty plea.” Id. “We evaluate the record as a whole to

ascertain whether the government complied with its promise.” Id.

         In the plea agreement, Mr. Diaz did agree to plead guilty to mailing one

pound of methamphetamine for purposes of distribution, but the agreement

contains no stipulation or agreement that that amount would be the only amount

considered in determining his sentence. Under the express provisions of the plea

agreement, Mr. Diaz acknowledged his understanding that, in imposing his

sentence, the district court would consider certain factors set forth in

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18 U.S.C. § 3553(a) and the Sentencing Guidelines promulgated by the United

States Sentencing Commission. Plea Agreement at 3-4. He further acknowledged

that the government “reserve[d] the right to advocate for, and present evidence

relevant to, . . . [sentencing] guideline adjustments and sentencing factors for

consideration” by the probation office and the court. Id. at 4. Under the

Sentencing Guidelines, a defendant’s relevant conduct, including his attempted

drug sales, are pertinent sentencing factors. See U.S.S.G. §§ 1B1.3, 2D1.1; see

also United States v. Moore, 130 F.3d 1414, 1419 (10th Cir. 1997) (holding that

uncharged amounts of drugs may be included as relevant conduct even if the

defendant never actually possessed or distributed the drugs). Mr. Diaz did not

dispute at sentencing, and does not dispute now, that he attempted to arrange a

sale of five pounds of methamphetamine with a drug enforcement officer, which

was not completed because the agent would not let Mr. Diaz borrow his car.

Accordingly, it was clear under the terms of the plea agreement that Mr. Diaz’s

attempted sale of five pounds of methamphetamine could be considered as

relevant conduct in determining his sentence.

      We conclude, based on the express terms of the plea agreement, Mr. Diaz’s

reasonable understanding of those terms, and the record as a whole, that the

government did not breach the plea agreement. Mr. Diaz does not argue that his

waiver is otherwise invalid under the framework set forth in Hahn, 359 F.3d at




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1325. Accordingly, the government’s motion to enforce the appeal waiver is

GRANTED, and the appeal is DISMISSED.



                                     ENTERED FOR THE COURT
                                     PER CURIAM




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