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

                             FOR THE TENTH CIRCUIT                         August 4, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 16-1047
                                                (D.C. No. 1:14-CR-00347-MSK-1)
PABLO GUTIERREZ-TOLEDO,                                     (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges.
                  _________________________________

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

appeal waiver contained in defendant Pablo Gutierrez-Toledo’s plea agreement. We

grant the defendant’s counsel’s motion to withdraw, grant the government’s motion

to enforce the defendant’s appeal waiver, and dismiss the appeal.

      The defendant pleaded guilty to one count of illegal reentry by a previously

deported felon, in violation of 8 U.S.C. § 1326(a) and (b)(1). The statutory

maximum penalty for this offense is 10 years’ (120 months’) imprisonment. See id.

      *
         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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
§ 1326(b)(1). Applying a total offense level of 10, the district court calculated the

defendant’s advisory guidelines sentencing range as 21 to 27 months’ imprisonment.

The court imposed a 27-month sentence. The government has not filed an appeal.

      In his plea agreement, the defendant “knowingly and voluntarily waive[d] the

right to appeal any matter in connection with [his] prosecution, conviction, or

sentence,” except in the following three circumstances: (1) the sentence imposed

exceeded the maximum penalty under the statute of conviction; (2) the sentence

exceeded the advisory sentencing guideline range applicable to a total offense level

of 10; or (3) the government appealed from the sentence imposed. Mot. to Enforce,

Attach. 1 (Plea Agmt.) at 2.

      The government filed a motion to enforce the plea agreement under United

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

a motion to enforce an appeal waiver, 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.

      The defendant’s counsel responded to the government’s motion. Citing

Anders v. California, 386 U.S. 738, 744 (1967), counsel states that the defendant has

no non-frivolous argument against enforcement of his appeal waiver. In particular,

counsel represents that “[t]here is no argument available that one of the three

exceptions to the appeal waiver occurred.” Resp. at 3-4. Counsel also requests

permission to withdraw from representing the defendant pursuant to Anders, 386 U.S.

                                           2
at 744. We gave the defendant an opportunity to file a pro se response to the motion

to enforce. See id. To date, he has not filed any response.

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

that the defendant’s appeal waiver is enforceable. Accordingly, we grant his

counsel’s motion to withdraw, grant the government’s motion to enforce the appeal

waiver, and dismiss the appeal.


                                           Entered for the Court
                                           Per Curiam




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