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

                             FOR THE TENTH CIRCUIT                          April 18, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-3009
                                                (D.C. No. 5:13-CR-40075-DDC-1)
ARTURO FAVELA-GOMEZ,                                        (D. Kan.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, KELLY and MORITZ, Circuit Judges.
                 _________________________________

      Arturo Favela-Gomez pled guilty to four counts of distributing

methamphetamine in violation of 21 U.S.C. § 841(a)(1). The court sentenced him to

158 months in prison, followed by five years of supervised release. Mr.

Favela-Gomez signed a plea agreement that included a broad waiver of appellate

rights, including the right to appeal his sentence unless the court departed upwards

from the applicable sentencing guideline range, which did not happen. Nevertheless,

he now seeks to challenge his sentence through this appeal.


      *
         This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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.
      The government has moved to enforce the appeal waiver under United States

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

      In response to the government’s motion, Mr. Favela-Gomez, through counsel,

“concedes that, under the standard announced in [Hahn], the plea agreement’s appeal

waiver is enforceable with respect to this direct appeal.” Response to Motion to

Enforce Appeal Waiver at 1 (Mar. 24, 2016). Based on this concession and our

independent review of the record, we conclude that this appeal falls within the scope

of the appeal waiver. We therefore grant the government’s motion and dismiss the

appeal. We do so, however, without prejudice to Mr. Favela-Gomez’s right to file a

motion under 28 U.S.C. § 2255.


                                            Entered for the Court
                                            Per Curiam




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