                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      January 30, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                  No. 06-2273
                                                  (D.C. No. 06-CR-644-BB)
    SALO M ON PEREIDO-CA NAS,                            (D . N.M .)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before L UC ER O, M U RPH Y, and M cCO NNELL, Circuit Judges.




         Defendant Salomon Pereido-Canas pled guilty to one count of reentry of a

deported alien previously convicted of an aggravated felony in violation of

8 U.S.C. § 1326(a)(1) and (2) and (b)(2). Pursuant to a plea agreement, he

“knowingly waive[d] the right to appeal any sentence within the statutory range

applicable to the statute(s) of conviction.” Plea A greement at 5. The statutory




*
      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 This order and judgment is not binding precedent, except under the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.
maximum sentence was twenty years of imprisonment with a period of supervised

release of up to three years. The district court sentenced M r. Pereido-Canas to

fifty-seven months of imprisonment 1 and two years of supervised release. Despite

the plea waiver, he filed a notice of appeal.

      The government has filed a motion to enforce the plea agreement.

M r. Pereido-Canas’ attorney filed a response stating that he “ha[d] carefully

reviewed this matter and [could] find no basis for an appeal of the sentence

imposed” or to oppose the government’s motion to enforce the plea agreement.

Response to United States’ M otion to Enforce Plea Agreement at 3, 4. Counsel

noted that M r. Pereido-Canas received the sentence he requested and he waived

his right to appeal that sentence. See id. at 3. This court gave M r. Pereido-Canas

an opportunity to file a pro se response to the motion to enforce. To date, he has

not done so.

      Nevertheless, we have conducted a review of the plea agreement, plea

hearing transcript, sentencing hearing transcript, and motion to enforce. W e

conclude that the following three factors have been satisfied: (1) “the disputed

appeals falls within the scope of the waiver of appellate rights”;

(2) M r. Pereido-Canas “knowingly and voluntarily waived his appellate rights”;

and (3) “enforcing the waiver would [not] result in a miscarriage of justice.”



1
      The applicable advisory guidelines sentencing range was fifty-seven to
seventy-one months. Sentencing Tr. at 9.

                                         -2-
United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (per curiam)

(en banc). Accordingly, we conclude that M r. Pereido-Canas’s waiver of his right

to appeal is enforceable. 2

      W e therefore GRANT the government’s motion to enforce the appeal

waiver and DISM ISS the appeal. The mandate shall issue forthwith.



                                      ENTERED FOR THE COURT
                                      PER CURIAM




2
         Although M r. Pereido-Canas’ counsel states that there is no basis for an
appeal, counsel does indicate that M r. Pereido-Canas w ould argue that his
fifty-seven month sentence was unfair and too long and that the enhancement
based on a prior felony sale-of-marijuana conviction amounts to double
punishment. M r. Pereido-Canas, however, waived his right to make these
arguments. In his plea agreement, he agreed not to “seek a downward adjustment
. . . from the applicable sentencing guidelines offense level or criminal history
category as determined by the Court.” Plea Agreement at 4. This waiver
included any claim that the criminal history category overstated the seriousness of
his prior criminal history. Id.

                                        -3-
