                                                                               FILED
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS                        March 15, 2006
                                    TENTH CIRCUIT                           Elisabeth A. Shumaker
                                                                                Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 05-7040
 DANIEL PEREZ CASTANO,                                (D.C. No. CR-04-089-02-P)
                                                          (E. D. Oklahoma)
           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,

ordered submitted without oral argument.

       Defendant Daniel Perez Castano pled guilty to three criminal counts arising out of

his attempt to purchase ten kilograms of cocaine from an undercover government agent


       *
        This order and judgment is not binding precedent, except under the doctrines of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 and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
and was sentenced to 211 months’ imprisonment. Castano’s counsel has filed a brief on

Castano’s behalf pursuant to Anders v. California, 386 U.S. 738 (1967), and moved for

leave to withdraw as counsel. We exercise jurisdiction pursuant to 28 U.S.C. § 1291,

grant counsel’s motion to withdraw, and dismiss the appeal.

       On July 15, 2004, a federal grand jury indicted Castano on three criminal counts:

(1) conspiracy to possess with intent to distribute, and knowing distribution of, ten

kilograms of cocaine in violation of 21 U.S.C. § 846; (2) being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1); and (3) possession of a firearm in

furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). On

August 20, 2004, Castano pled guilty, pursuant to a written plea agreement with the

government, to all three counts alleged in the indictment. Under the terms of the plea

agreement, Castano agreed to waive his right to appeal the sentence imposed in his case

except to the extent, if any, that the district court departed upward from the applicable

sentencing guideline range. On March 29, 2005, the district court sentenced Castano to

211 months’ imprisonment, a term within the applicable guideline range. Castano filed a

notice of appeal on March 31, 2005.

       In the Anders brief, Castano’s counsel acknowledges that, in light of Castano’s

agreement to waive his right to appeal, the appeal is wholly frivolous. Nevertheless,

Castano’s counsel notes two “possible errors” that occurred at sentencing: (1) the trial

court’s finding that the offenses of conviction involved ten kilograms of cocaine; and (2)

the trial court’s refusal to depart downward from the applicable sentencing guideline

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range. The government, in its response, asks us to enforce the appeal waiver and dismiss

the appeal.

       In United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004), we adopted a

three-pronged test for determining whether to enforce a waiver of appellate rights. Under

this test, we ask “(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. Applying that test here, we conclude, after carefully examining the

record, that the appeal waiver squarely covers the two issues asserted in the Anders brief

and that Castano knowingly and voluntarily waived his appellate rights.1 Further,

Castano does not contend that enforcing his appeal waiver would result in a miscarriage

of justice, nor do we find that to be the case. See id. at 1327 (outlining when a


       1
         During the plea hearing, the following colloquy occurred between the magistrate
judge and Castano:
       THE COURT: On paragraph 5, you are – it says that you expressly waive
       any right of appeal in this case. You understand that you are waiving your
       right to appeal, –
       THE DEFENDANT: Yes, sir.
       THE COURT: – unless the Court departs upwardly from where the
       sentencing guidelines set your sentence?
       THE DEFENDANT: Uh-huh.
       THE COURT: Do you understand that what that means is that whatever
       sentence you get here will ultimately be the final sentence you get and there
       won’t be taking any appeal from it?
       THE DEFENDANT: Yes, sir.
       THE COURT: You understand that?
       THE DEFENDANT: Yes.
ROA, Vol. II at 15-16.

                                             -3-
miscarriage of justice can occur). Thus, we conclude that the appeal waiver is

enforceable and precludes this appeal.

      Counsel’s motion for leave to withdraw is GRANTED and the appeal is

DISMISSED.

                                                 Entered for the Court



                                                 Mary Beck Briscoe
                                                 Circuit Judge




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