                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 12, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 10-2276
    v.                                         (D.C. No. 2:10-CR-02099-RB-1)
                                                          (D. N.M.)
    MIGUEL ANGEL
    GUTIERREZ-VICENTE,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, LUCERO, and HARTZ, Circuit Judges.



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

appeal waiver contained in defendant Miguel Angel Gutierrez-Vicente’s plea

agreement. The defendant pleaded guilty to one count of possessing with intent

to distribute 50 kilograms and more of a substance containing marijuana and one

count of reentry of a removed alien. Pursuant to the plea agreement, the


*
      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 This order and judgment is not binding precedent, except under the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.
defendant waived his right to appeal his conviction or his sentence, provided his

sentence was within the statutory maximum authorized by law. The district court

sentenced the defendant to 46 months’ imprisonment, well below the statutory

maximum of 20 years’ imprisonment. 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’s counsel stated that there are no non-frivolous

arguments that can be presented in response to the motion to enforce, citing

Anders v. California, 386 U.S. 738, 744 (1967). This court gave the defendant an

opportunity to file a pro se response, see id., but to date, the defendant has not

filed a response to the motion to enforce.

      Under Anders, we have reviewed the motion and the record and we

conclude 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 Hahn,

359 F.3d at 1325 (describing the factors this court considers when determining

whether to enforce a waiver of appellate rights).




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

DISMISS the appeal.


                                  ENTERED FOR THE COURT
                                  PER CURIAM




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