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

                           FOR THE TENTH CIRCUIT                     November 15, 2016

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

             Plaintiff - Appellee,

v.                                                        No. 16-1235
                                               (D.C. No. 1:12-CR-00038-CMA-1)
AGUSTIN AGUIRRE-RAMIREZ, a/k/a                             (D. Colo.)
Los Simbolos, a/k/a Alonso Valdivia,
a/k/a Cisco,

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before BRISCOE, EBEL, and LUCERO, Circuit Judges.


      Agustin Aguirre-Ramirez pled guilty to one count of conspiracy to distribute

and possess with intent to distribute five kilograms or more of a mixture or substance

containing a detectable amount of cocaine. He was sentenced to 216 months in

prison. His plea agreement contained a waiver of his right to appeal from his

conviction or sentence. In spite of this waiver, Mr. Aguirre-Ramirez filed a notice of


*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
appeal seeking to challenge his sentence. The government has moved to enforce the

appeal waiver pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (per

curiam).

      When reviewing 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.” Id. at 1325.

Mr. Aguirre-Ramirez does not contest that his waiver was knowing and voluntary and

he does not argue that enforcing the waiver would result in a miscarriage of justice.

We therefore need not address those issues. See United States v. Porter, 405 F.3d

1136, 1143 (10th Cir. 2005). His sole argument is that his appeal is outside the scope

of the waiver.

      Mr. Aguirre-Ramirez waived the right to appeal “any matter in connection

with [his] prosecution, conviction or sentence” unless it met one of three conditions:

      (1) the sentence imposed is above the maximum penalty provided in the
      statute of conviction; (2) the Court, after determining the otherwise
      applicable sentencing guideline range, either departs or varies upwardly,
      or (3) the Court determines that the offense level is greater than the
      adjusted offense level of 42 . . . and imposes a sentence based upon that
      offense level determination.

Mot. to Enforce, Attach. 1 at 3-4.

      Here, the district court determined that the applicable sentencing guideline

range for Mr. Aguirre-Ramirez was 292 to 365 months’ imprisonment. The court

then decided to vary downward and sentenced him to a below-guideline sentence of

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216 months’ imprisonment. This sentence does not meet any of the three conditions

for an exception to the appeal waiver: (1) it does not exceed the maximum penalty of

life in prison; (2) it is not an upward departure or variance from the guideline range,

but instead is a downward variance; and (3) the offense level determined by the

district court was 39, which is below the offense level of 42 indicated in the third

condition.

       Mr. Aguirre-Ramirez argues, however, that the second condition is implicated

if the district court improperly calculated the guideline range. He asserts that the

words “otherwise applicable” permits a challenge to the calculation of the guideline

range or renders this condition ambiguous. We disagree.

       The second condition creates an exception to the waiver when, after

determining the otherwise applicable sentencing guideline range, the district court

departs or varies upwardly from that range. There is nothing in the second condition

that indicates that a challenge to the district court’s calculation of the initial

sentencing guideline range is outside of the waiver. The “otherwise applicable”

language serves as a reference if the district court departs or varies upward from the

range it has determined is appropriate. This language does nothing to alter the focus

of this exception or to create any ambiguity. The focus of the exception is to permit

an appeal if the district court departs or varies upward from whatever guideline

range it has determined is appropriate.




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      Because the district court did not depart or vary upward from the guideline

range it had determined was applicable, Mr. Aguirre-Ramirez’s appeal falls within

the scope of the waiver in his plea agreement. Accordingly, we grant the

government’s motion to enforce and dismiss this appeal.


                                              Entered for the Court
                                              Per Curiam




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