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

                             FOR THE TENTH CIRCUIT                           May 2, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-2035
                                                 (D.C. No. 2:14-CR-04116-RB-1)
RAMIRO SAENZ,                                               (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, BRISCOE and LUCERO, Circuit Judges.
                 _________________________________

      Ramiro Saenz pled guilty to being a felon in possession of a firearm and

ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In his plea

agreement, Mr. Saenz waived his right to appeal his conviction and his sentence,

provided the sentence did not exceed the ten-year maximum statutory penalty

authorized by law. The district court sentenced him to 72 months in prison, followed

by three years of supervised release. This sentence was within the maximum

statutory penalty, even though it was an upward variance from the advisory

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
sentencing guideline range. Nevertheless, Mr. Saenz filed a pro se notice of appeal.

We have since appointed counsel to represent Mr. Saenz in this matter.

      The government has moved to enforce the appeal waiver in the plea agreement

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

Hahn instructs us to enforce appeal waivers as long as three conditions are met:

(1) the matter on appeal falls within the scope of the waiver; (2) the defendant

knowingly and voluntarily waived his appellate rights; and (3) enforcing the waiver

will not result in a miscarriage of justice. Id. at 1325. Mr. Saenz does not address

the Hahn factors in his response to the motion to enforce. Instead, he attacks the

validity of the plea agreement by arguing that the sentence imposed by the district

court deprived him of the benefit of the bargain.

      Mr. Saenz too narrowly identifies the bargain he expected to receive from his

plea agreement to be “the stipulations in the plea agreement, i.e. three points

reduction for acceptance of responsibility and two points reduction as a downward

variance to the advisory sentencing guidelines range.” Resp. to Mot. to Enforce at 2.

He received other benefits as well, such as the government’s concession that it would

not bring additional criminal charges against him arising out of these same facts.

      Furthermore, the plea agreement left no doubt that Mr. Saenz’s sentence was

“solely within the discretion” of the district court, which could choose to vary from

the advisory sentencing guideline range:

      The defendant understands that the above stipulations [to reductions
      from the base offense level and a guideline variance] are not binding on
      the Court and that whether the Court accepts these stipulations is a

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      matter solely within the discretion of the Court after it has reviewed the
      presentence report. Further, the defendant understands that the Court
      may choose to vary from the advisory guideline sentence. The
      defendant understands that if the Court does not accept any one or more
      of the above stipulations and reaches an advisory guideline sentence
      different than expected by the defendant, or if the Court varies from the
      advisory guideline range, the defendant will not seek to withdraw the
      defendant’s plea of guilty. In other words, regardless of any
      stipulations the parties may enter into, the defendant’s final sentence is
      solely within the discretion of the Court.

Mot. to Enforce, Exh. 1, Plea Agmt. at 5-6. The magistrate judge at the plea hearing

reinforced this point as well:

      THE COURT: What you have to understand about both those
      agreements [the three-level reduction for acceptance of responsibility
      and the downward variance], and really everything that’s under that
      stipulation section, is that those are simply agreements you have with
      the prosecutor, you know, with the U.S. Attorney’s Office. . . . [I]f you
      go to your sentencing, you know, judge, it’s possible that he or she
      could refuse to give you those reductions. And if that happened, you
      wouldn’t be allowed to withdraw your guilty plea. Do you understand
      that?

      THE DEFENDANT: Yes, sir.

Mot. to Enforce, Exh. 2, Plea Trans. at 11-12.

      Considered against this backdrop, the district court’s rejection of the

government’s recommendation and its imposition of a 72-month sentence do not

invalidate the plea agreement or make it an illusory contract. The government

followed through on its end of the bargain when it recommended a 41- to 51-month

sentence to the district court. And Mr. Saenz was well aware that the district court

was free to reject that recommendation because the plea agreement was not binding




                                           3
on the court. There was mutual consideration in the plea agreement, and it is not

otherwise unlawful.

      Finally, our careful review of the record unequivocally demonstrates that the

Hahn factors favor enforcing Mr. Saenz’s waiver of appellate rights. The matter on

appeal falls within the scope of the waiver because Mr. Saenz agreed to “knowingly

waive[] the right to appeal [his] conviction(s) and any sentence, including any fine, at

or under the maximum statutory penalty authorized by law.” Plea Agmt. at 6. It is

clear from both the plea agreement and the Rule 11 colloquy that Mr. Saenz

knowingly and voluntarily waived his appellate rights. And enforcing the appeal

waiver will not result in a miscarriage of justice

      For these reasons, we grant the government’s motion to enforce and dismiss

the appeal.


                                            Entered for the Court


                                            Per Curiam




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