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

                            FOR THE TENTH CIRCUIT                       February 5, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                         No. 14-1357
                                                 (D.C. No. 1:13-CR-00161-REB-9)
JESUS GARCIA-SALAS,                                          (D. Colo.)
a/k/a Don Chuy,

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.


      After accepting a plea agreement that included a waiver of his right to appeal,

Jesus Garcia-Salas pleaded guilty to one count of possession of a controlled

substance with intent to distribute. He was sentenced to 61 months’ imprisonment –

a below-Guidelines sentence. Notwithstanding the appeal waiver, Mr. Garcia-Salas

has filed a notice of appeal that identifies two issues: “Appellant believes that the

sentence imposed violated the terms of the plea agreement as he understood them to

*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
be when he agreed to the same; [and] Appellant wants to appeal the sentence that was

imposed on him.” Dktg. Stmt. at 5. The government has moved to enforce the

waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc)

(per curiam). We grant the motion and dismiss the appeal.

      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 written plea agreement executed by Mr. Garcia-Salas precludes an appeal

      unless it meets one of the following three criteria: (1) the sentence
      imposed is above the maximum penalty provided in the statute of
      conviction, (2) the Court, after determining the otherwise applicable
      sentencing guideline range, either departs or varies upwardly, or (3) the
      Court determines that the offense level is greater than 36 (prior to any
      reduction for safety valve or acceptance of responsibility) and imposes a
      sentence based upon that offense level determination.

Plea Agmt. at 4. And at the change of plea hearing Mr. Garcia-Salas acknowledged

he was waiving the right of appeal subject only to the exceptions stated in the plea

agreement. See Plea Hr’g Tr. at 21-24.

      Mr. Garcia-Salas’s counsel has filed a response to the government’s motion to

enforce, in which he states that the district court’s “findings, conclusions and

judgment did not trigger any of the exceptions to the appeal waiver.” Resp. at 2. In

other words, he concedes that the appeal falls within the scope of the waiver. As to


                                          -2-
the other Hahn factors (whether the waiver was knowing and voluntary or would

result in a miscarriage of justice) he makes no argument. As such, the motion to

enforce is granted and this matter is dismissed.


                                               Entered for the Court
                                               Per Curiam




                                         -3-
