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

                           FOR THE TENTH CIRCUIT                      October 16, 2013

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                        No. 13-2113
                                               (D.C. No. 2:13-CR-00678-MCA-1)
OSCAR ORTIZ-QUEZADA,                                       (D. N.M.)

             Defendant-Appellant.


                           ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, HOLMES and MATHESON, Circuit Judges.


      Oscar Ortiz-Quezada pleaded guilty to violating 8 U.S.C. § 1325 by illegally

reentering this country after he was removed. Mr. Ortiz-Quezada’s plea agreement

contained a waiver of his appellate rights. He was sentenced to 27 months’

imprisonment, which was at the low end of the advisory guideline sentencing range.

Mr. Ortiz-Quezada then filed a notice of appeal. The government has moved to


*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
enforce the appeal waiver in Mr. Ortiz-Quezada’s plea agreement pursuant to

United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam).

      Mr. Ortiz-Quezada’s attorney filed a response to the government’s motion,

stating that there were no non-frivolous grounds to oppose the motion. He therefore

asked to withdraw from representing Mr. Ortiz-Quezada. See Anders v. California,

386 U.S. 738, 744 (1967) (authorizing counsel to request permission to withdraw

where counsel conscientiously examines a case and determines that an appeal would

be wholly frivolous). This court then gave Mr. Ortiz-Quezada an opportunity to file

a pro se response to the government’s motion; no response was filed within the

specified time period.

      When counsel seeks to withdraw under Anders, we must examine the

proceedings ourselves to determine whether the case is frivolous. See id. In the

context of a motion to enforce, 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.” Hahn, 359 F.3d at 1325.

      Mr. Ortiz-Quezada seeks to challenge his sentence, which falls within the

scope of his appellate waiver. See Mot. to Enf., Att. 1 at 5 (“[D]efendant knowingly

waives the right to appeal this conviction and any sentence . . . .”). In his plea

agreement, he “knowingly” waived his right to appeal, id., he stated that he

understood the terms of his agreement, and he “voluntarily” agreed to those terms, id.


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at 7. Further, during his plea hearing, the court informed him of the rights he was

giving up in his plea agreement, including the right to appeal from his sentence, and

he verbally acknowledged that he understood the terms of his plea agreement. See

id., Att. 2 at 15-17. Finally, there are no circumstances to support a finding that

enforcing the waiver would result in a miscarriage of justice.

      We conclude that Mr. Ortiz-Quezada’s appeal is within the scope of the

waiver, his waiver was knowing and voluntary, and enforcing the waiver would not

result in a miscarriage of justice. Because there are no non-frivolous grounds to

contest the government’s motion, we grant both counsel’s motion to withdraw and

the government’s motion to enforce the appeal waiver.


                                                Entered for the Court
                                                Per Curiam




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