                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 6, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 11-3083
    v.                                         (D.C. No. 5:10-CR-40032-RDR-1)
                                                           (D. Kan.)
    LUCIANO ARREOLA,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, EBEL, and TYMKOVICH, Circuit Judges.



         This matter is before the court on the government’s motion to enforce the

appeal waiver contained in defendant Luciano Arreola’s plea agreement. The

defendant pleaded guilty to possession with intent to distribute approximately

7,560 grams of methamphetamine. Pursuant to the plea agreement, the defendant

waived his right to appeal his conviction or his sentence, provided his sentence



*
      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 This order and judgment is not binding precedent, except under the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.
was within the statutory maximum authorized by law and within the advisory

sentencing guideline range determined by the district court to apply. The district

court determined the advisory guideline range was 70 to 87 months’ imprisonment

and sentenced the defendant below that range, to 60 months. Nevertheless, the

defendant filed a notice of appeal.

      The government filed a motion to enforce the plea agreement pursuant to

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

In response, the defendant concedes through counsel that there are no arguments

that can be presented in response to the motion to enforce. We have reviewed the

motion, the record and the defendant’s response, and we agree that the

defendant’s proposed appeal falls within the scope of the appeal waiver, that he

knowingly and voluntarily waived his appellate rights, and that enforcing the

waiver would not result in a miscarriage of justice. See id. at 1325 (describing

the factors this court considers when determining whether to enforce a waiver of

appellate rights).

      Accordingly, we GRANT the motion to enforce the appeal waiver and

DISMISS the appeal.


                                       ENTERED FOR THE COURT
                                       PER CURIAM




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