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

                            FOR THE TENTH CIRCUIT                             July 19, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 19-2053
                                                    (D.C. No. 2:16-CR-04651-KG-2)
 JUAN LOZANO,                                                  (D. N.M.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HOLMES, MORITZ, and EID, Circuit Judges.
                 _________________________________

      This matter is before the court on the government’s motion to enforce the

appeal waiver in Juan Lozano’s plea agreement. Exercising jurisdiction under

28 U.S.C. § 1291, we grant the motion and dismiss the appeal.

                                   BACKGROUND

      Lozano pleaded guilty to possession with intent to distribute and conspiracy to

possess with intent to distribute 500 grams or more of a mixture or substance containing

methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), and 846. Lozano was advised both in the written plea agreement and



      *
         This order and judgment is not binding precedent, except under the doctrines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.
orally at the change of plea hearing that his conviction carried a mandatory minimum

sentence of 120 months in prison. As part of the plea agreement, Lozano waived his

right to appeal his conviction and any sentence “at or under the maximum statutory

penalty authorized by law.”. Mot. to Enforce, Exh. 1 at 7. The plea agreement

acknowledged that Lozano was entering his plea knowingly and voluntarily and that

he understood its consequences, including the possible sentences and appeal waiver.

      At the change of plea hearing, the court reminded Lozano about the

mandatory-minimum sentence and broad appeal waiver, and he confirmed that he

understood and that he wanted to plead guilty. Based on his responses to the court’s

questions and its observations of his demeanor during the hearing, the court accepted

Lozano’s plea as having been knowingly and voluntarily entered.

      After two sentencing hearings, the court determined that Lozano was not

eligible for a sentence below the mandatory-minimum and sentenced him to 120

months’ imprisonment. Despite his appeal waiver, Lozano filed a notice of appeal

and a docketing statement indicating that he intended to appeal his conviction on

speedy trial grounds.

                                    DISCUSSION

      In ruling on a motion to enforce, 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.” United States v. Hahn, 359 F.3d

1315, 1325 (10th Cir. 2004) (en banc) (per curiam).

                                           2
      Lozano’s response to the government’s motion to enforce indicates that he

understands the “nature of the plea agreement, the mandatory minimum sentence

imposed, and the scope of his appellate waiver contained in the plea agreement,” and

that he “does not object to the dismissal of this appeal.” Resp. at 1. We construe this

response as a concession that his waiver was knowing and voluntary, that his appeal

falls within the scope of the waiver, and that enforcement of the waiver would not

result in a miscarriage of justice. See United States v. Porter, 405 F.3d 1136, 1143

(10th Cir. 2005) (noting that court need not address uncontested Hahn factor).

                                   CONCLUSION

      Accordingly, we grant the government’s motion to enforce the appeal waiver

and dismiss the appeal.


                                           Entered for the Court
                                           Per Curiam




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