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

                            FOR THE TENTH CIRCUIT                             July 25, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 19-3109
                                                   (D.C. No. 2:17-CR-20043-CM-2)
 JESUS QUINTANA,                                               (D. Kan.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, LUCERO, and BACHARACH, Circuit Judges.
                   _________________________________

      Following his acceptance of a plea agreement that included a waiver of his

right to appeal, Jesus Quintana pleaded guilty to conspiracy to distribute and to

possess with intent to distribute more than five kilograms of cocaine, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), and 846. He was sentenced to 90 months’

imprisonment. Despite the waiver, he appealed. The government has moved to

enforce the appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328

(10th Cir. 2004) (en banc) (per curiam).




      *
         This order and judgment is not binding precedent, except under the doctrines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.
      In evaluating a motion to enforce an appeal waiver, 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, Quintana concedes that “[t]he record

reveals no facts which suggest that [the Hahn] factors are not met for purposes of this

direct appeal.” Resp. at 1.

      Our independent review confirms that the proposed issue for appeal (identified

in Quintana’s Docketing Statement as an appeal of his sentence) falls within the

scope of his waiver. The plea agreement clearly sets forth the waiver and states that

it was knowing and voluntary, and the district court discussed the waiver and

voluntariness at the plea hearing. There is no contradictory evidence in the record

indicating that Quintana did not knowingly and voluntarily accept the waiver.

Finally, there is no indication in the record that enforcing the waiver would result in a

miscarriage of justice as defined in Hahn, 359 F.3d at 1327.

      The motion to enforce is granted and the appeal is dismissed.1


                                            Entered for the Court
                                            Per Curiam




      1
        We decline Quintana’s request to “clarify that the dismissal is without
prejudice to his right to challenge the appellate waiver through collateral attack.”
Resp. at 2. The sole issue before us is whether to grant the government’s motion to
enforce his appellate waiver and dismiss his direct appeal.
                                           2
