                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         June 30, 2005
                                TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 04-2337
          v.                                            (D. of N.M.)
 MARTIN ANTONIO-CARDENAS,                       (D.C. No. CR-04-1529-BB)

               Defendant-Appellant.


                           ORDER AND JUDGMENT           *




Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.          **




      On August 5, 2004, appellant Martin Antonio Cardenas entered into a plea

agreement on a charge of possessing with the intent to distribute 50 kilograms or

more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and

18 U.S.C. § 2. The plea agreement provided that “the defendant knowingly

waives the right to appeal any sentence within the applicable guideline range as


      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
determined by the Court after resolution of any objections by either party to the

presentence report . . . [i]n other words, the defendant waives the right to appeal

the sentence imposed in this case except to the extent, if any, that the court may

depart upwards from the applicable sentencing guideline range[.]” Cardenas also

admitted he violated his supervised release by reentering the United States after

deportation, and was sentenced to an additional twelve months for this offense,

with the sentence to run consecutively to his sentence for drug possession.

       Despite his appeal waiver, Cardenas now wishes to appeal on the grounds

that his sentence violates   United States v. Booker, 125 S. Ct. 738 (2005). His

counsel filed a brief pursuant to    Anders v. California , 386 U.S. 738 (1967),

asserting counsel could discern no non-frivolous issues for appeal and therefore

wished to withdraw. We grant counsel’s motion to withdraw and dismiss the

appeal as barred by the appeal waiver.

       I. Cardenas’s Plea Waiver

       We have “both statutory and constitutional subject matter jurisdiction over

appeals when a criminal defendant has waived his appellate rights in an

enforceable plea agreement.”        United States v. Hahn , 359 F.3d 1315, 1324 (10th

Cir. 2004). In Hahn , we adopted a three-prong analysis for reviewing appeals

brought after a defendant entered into such a waiver: “(1) whether the disputed

appeal falls within the scope of the waiver of appellate rights; (2) whether the


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defendant knowingly and voluntarily waived his appellate rights; and (3) whether

enforcing the waiver would result in a miscarriage of justice[.]”        Id. at 1325.

          Applying the first prong, we conclude this appeal falls within the scope of

Cardenas’s broad waiver, in which he clearly acknowledged he was waiving the

right to appeal except where the court departed upward from the applicable

Guideline range. Applying the second prong, nothing in the record indicates

Cardenas entered into his plea agreement unknowingly or involuntarily. To the

contrary, he was represented by competent counsel, acknowledged he understood

the provisions of the agreement, and did not dispute the agreement at his

sentencing. Finally, as to the third prong, there is also no evidence that enforcing

the waiver would be a miscarriage of justice.     Hahn ’s standard with respect to the

third prong is demanding: we find it is met only in circumstances such as “(1)

where the district court relied on an impermissible factor such as race, (2) where

ineffective assistance of counsel in connection with the negotiation of the waiver

renders the waiver invalid, (3) where the sentence exceeds the statutory

maximum, or (4) where the waiver is otherwise unlawful.”            Id. at 1327. We agree

with defense counsel that Cardenas’s waiver presents none of these issues.

       Therefore, Cardenas’s appeal waiver is enforceable and we DENY his

appeal.




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       II. Booker Issues

       Although we have already determined Cardenas has waived appeal, we

briefly address the merits of his   Booker argument. According to counsel’s     Anders

brief, Cardenas wishes to appeal on the grounds that his sentence for a supervised

release violation should have been run concurrently with his sentence for drug

possession. Cardenas bases this theory on the Supreme Court’s decision in

Booker , which rendered portions of the Federal Sentencing Guidelines advisory.

However, as counsel points out,     Booker has no effect on sentences for supervised

release violations. Such sentences are imposed pursuant to Chapter VII of the

Guidelines, which were, prior to     Booker , already considered advisory.   See United

States v. Lee , 957 F.2d 770 (10th Cir. 1992). Accordingly, the consecutive

sentence imposed by the district court was not pursuant to the then “mandatory”

Guidelines scheme addressed in      Booker .

       As to the merits of the district court’s decision to run Cardenas’s sentences

consecutively, we have held that when imposing a sentence for a supervised

release violation, a district court must simply consider the various factors listed in

18 U.S.C. § 3553(a).     See United States v. Kelley   , 359 F.3d 1302, 1302-04 (10th

Cir. 2004). In this case, the record shows the district court adequately considered

these factors.




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Accordingly, Cardenas’s sentence is affirmed and the case is dismissed.


                                       Entered for the Court


                                       Timothy M. Tymkovich
                                       Circuit Judge




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