                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                        May 23, 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. 07-4006
                                                (D.C. No. 2:06-CR-724-DAK)
    JESU S ESTR AD A -M A G A N A,                        (D. Utah)
    also known as Jesus Leonardo
    Estrada-M agana, also known as
    Jeses L. Estrada-M aganna, also known
    as Jesus Estrada, also known as Jesus
    Estrada-Emagana, also known as
    Jorge Lopez,

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before KELLY, L UC ER O, and GORSUCH, Circuit Judges.


         Defendant Jesus Estrada-M agana, a native of M exico, was removed from

the United States on M ay 22, 2003. Despite his removal, he reentered the United

States without permission from the Secretary of the Department of Homeland


*
      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 This order and judgment is not binding precedent, except under the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.
Security. After being found in the United States in September 2006, he was

charged with illegally reentering the United States as a previously removed alien

in violation of 8 U.S.C. § 1326.

      M r. Estrada-M agana pled guilty to that charge. Under the terms of the plea

agreement, he waived his right to appeal any sentence imposed upon him on any

grounds, except that he did not waive the right to appeal any sentence imposed

above the statutory maximum penalty, any sentence imposed with an upward

departure from the high end of the Guidelines range, or a sentence that did not

reflect the two-level “fast track” reduction recommended by the government.

Statement by Def. in A dvance of Plea of Guilty at 3. The agreement set forth

M r. Estrada-M agana’s understanding that the statutory maximum sentence was

ten years’ imprisonment, a fine of $250,000 or both, and a term of supervised

release of up to thirty-six months. Id. at 1. The district court sentenced

M r. Estrada-M agana to fifteen months’ imprisonment, which was below the

statutory maximum sentence and at the low end of the sentencing G uidelines. 1

M r. Estrada-M agana was further placed on supervised release for a term of

thirty-six months. Notwithstanding the appeal waiver, he appealed. The

government moved to enforce the appeal waiver under United States v. Hahn,



1
       During the same sentencing proceeding, the district court also sentenced
M r. Estrada-M agana to a concurrent three months and a consecutive three months
of imprisonment for violation of the terms of his supervised release. Change of
Plea & Sentencing Tr. at 27.

                                         -2-
359 F.3d 1315 (10th Cir. 2004) (per curiam) (en banc). For the reasons explained

below, we grant the motion and dismiss the appeal.

       In Hahn, 359 F.3d at 1325, we held that a waiver of appellate rights will be

enforced if (1) “the disputed appeal falls within the scope of the waiver of

appellate rights; (2) [] the defendant knowingly and voluntarily waived his

appellate rights; and (3) [] enforcing the waiver would [not] result in a

miscarriage of justice.” M r. Estrada-M agana concedes that his appeal falls within

the scope of the waiver of appellate rights and that he knowingly and voluntarily

waived those rights. W e therefore need not address these two factors. See United

States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (recognizing that court

need not address each Hahn factor if defendant does not raise issue relating to

that factor).

       M r. Estrada-M agana argues that enforcement of the plea agreement will

result in a miscarriage of justice. Specifically, he contends that

       his appeal waiver should not be enforced because of the sentence of
       15 months, based solely upon the district court’s adoption of the
       sentencing guideline recommendation, without significant explicit
       consideration of other sentencing factors listed in 18 U.S.C. § 3355
       (sic), 2 including the facts, discussed at the sentencing hearing, that
       M r. Estrada-M agana is a parent of two children who live in this
       country, and returned to this country to care for these children when
       his wife was unable to care for them because of serious drug use and
       criminal activity.




2
       The relevant statute is 18 U.S.C. 3553.

                                         -3-
M em. in Opp’n to M ot. to Dismiss at 2.

      The miscarriage-of-justice factor requires the defendant to show one of the

following: (a) his sentence relied on an impermissible factor such as race;

(b) ineffective assistance of counsel in connection with the negotiation of the

appeal waiver rendered the w aiver invalid; (c) his sentence exceeded the statutory

maximum; or (d) his appeal waiver w as otherw ise unlawful. Hahn, 359 F.3d at

1327. M r. Estrada-M agana bases his argument solely on the fourth factor. For a

fourth category unlawful waiver, the error must “seriously affect[] the fairness,

integrity or public reputation of the judicial proceedings.” See id. (quotation

omitted).

      After reviewing the appellate filings, we conclude that M r. Estrada-M agana

has not met his burden to demonstrate that his appeal waiver w as unlawful. See

United States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir. 2007). Accordingly,

we GRA NT the government’s motion to enforce the plea agreement and DISM ISS

the appeal. The mandate shall issue forthwith.




                                       ENTERED FOR THE COURT
                                       PER CURIAM




                                           -4-
