                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      October 3, 2006
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                  No. 06-6194
                                                  (D.C. No. 04-CR-0179-R)
    R AFA EL LO ER A G A MB O A ,                       (W .D. Okla.)
    also known as Crook,

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before KELLY, L UC ER O, and HA RTZ, Circuit Judges.




         The government has filed a motion to enforce the plea agreement with

defendant Rafael Loera Gamboa. In the agreement, M r. Gamboa w aived his right

to appeal his conviction and sentence on the charge of conspiring to distribute

controlled substances. M r. Gamboa’s attorney does not oppose the motion to

enforce; he has moved to withdraw as counsel of record. M r. Gamboa objects to


*
      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 This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
his attorney’s position. He has filed a pro se response to the government’s

motion to enforce, which we construe liberally. See Haines v. Kerner, 404 U.S.

519, 520-21 (1972).

      M r. Gamboa contends that he was coerced into entering a guilty plea by

various prosecutorial decisions, including placing him in the same holding cell as

a codefendant and others involved in the drug conspiracy. M r. Gamboa claims he

was stabbed as a consequence. He also maintains that his attorney and the federal

district court judge conspired to coerce him to plead guilty. In addition, he

apparently asserts that he was not given adequate consideration for his

cooperation in the investigation of the drug conspiracy and other criminal cases.

      This court will enforce a criminal defendant’s waiver of his right to appeal

so long as the following three elements are satisfied: (1) “the disputed appeal

falls within the scope of the w aiver of appellate rights,” (2) the defendant’s

waiver of his appellate rights was knowing and voluntary, and (3) enforcing the

waiver w ill not result in a miscarriage of justice. United States v. Hahn, 359 F.3d

1315, 1325 (10th Cir. 2004) (en banc) (per curiam).

      M r. Gamboa opposes the motion to enforce based only on the second and

third Hahn factors. Therefore, we do not address the first factor. See United




                                          -2-
States v. Porter, 405 F.3d 1136, 1143 (10th Cir.) (declining to address Hahn

factor not contested by defendant), cert. denied, 126 S. Ct. 550 (2005). 1

                            Knowing and Voluntary Waiver

      M r. Gamboa asserts that his consent to the plea agreement and waiver of

appellate rights was not knowing and voluntary. To evaluate this assertion,

we consider “whether the language of the plea agreement states that [he] entered

the agreement knowingly and voluntarily” and whether there is “an adequate

Federal Rule of Civil Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. It is

M r. Gamboa’s burden to demonstrate record evidence showing that he did not

understand the waiver. Id. at 1329.

      M r. Gamboa has failed to meet his burden. The plea agreement clearly

described the charge to which he pled guilty, the factual basis for the charge,

and the maximum penalty. In addition, the agreement stated that M r. Gamboa

“knowingly and voluntarily waive[d] his right to . . . [a]ppeal or collaterally

challenge his guilty plea and any other aspect of his conviction.” M ot. to

Enforce, Attach. 2, at 7.

      M oreover, at the plea colloquy, M r. Gamboa stated that his guilty plea was

“made voluntarily and completely of [his] own free choice.” Id., Attach. 3, at 6.

In addition, he stated that he understood that he gave up his right to plead not



1
      Nevertheless, it is clear that this appeal falls within the scope of the waiver
of appellate rights.

                                         -3-
guilty, that he was satisfied with the services of his attorney, that his attorney

gave him appropriate advice with regard to his guilty plea, and that he gave up his

right to appeal. Id. at 13-15. He also described his participation in the drug

conspiracy on which his guilty plea was based, thus providing an adequate factual

basis for the plea. See id. at 16-19. Finally, he declined the district court’s

invitation to ask further questions or address any concerns. Id. at 19.

      M r. Gamboa has presented no evidence to demonstrate that he did not

understand the waiver. His conclusory claims that his attorney and the district

judge colluded to coerce him into pleading guilty are belied by his statement that

he was satisfied with his attorney’s services and by the free and open exchange

betw een M r. G amboa and the judge. See id. passim. Based on this record we

conclude that M r. Gamboa know ingly and voluntarily waived his right to appeal

his guilty plea.

                                M iscarriage of Justice

      Construing M r. Gamboa’s pro se pleading liberally, we also consider

whether enforcing the waiver w ill result in a miscarriage of justice.

                    M iscarriage of justice results where: 1) the
             district court relied on an impermissible factor such as
             race; 2) ineffective assistance of counsel in connection
             with the negotiation of the waiver renders the waiver
             invalid; 3) the sentence exceeds the statutory maximum;
             or 4) the waiver is otherwise unlawful. To satisfy the
             last factor, the error must seriously affect the fairness,
             integrity or public reputation of judicial proceedings.



                                          -4-
United States v. M aldonado, 410 F.3d 1231, 1233 (10th Cir.) (per curiam)

(quotations, alterations, and citation omitted), cert. denied, 126 S. Ct. 577 (2005).

      M r. Gamboa contends that he gave valuable information, at great risk to

himself and his family, to a California police officer and other authorities.

He claims that in exchange for that information, the charges were to have been

dismissed. He further claims that he was required to file a pro se motion to

dismiss the indictment because his attorney refused his instruction to do so. 2

W e construe these arguments as a claim that the waiver is unlaw ful.

      The events of which M r. Gamboa complains occurred prior to his guilty

plea. By his knowing and voluntary guilty plea, M r. Gamboa waived the claims

based on those events because they do not challenge the district court’s

jurisdiction. See United States v. Salazar, 323 F.3d 852, 856 (10th Cir. 2003)

(“[I]t is w ell established that a voluntary and unconditional guilty plea waives all

non-jurisdictional defenses.”). Accordingly, we conclude that M r. Gamboa has

not met his burden to persuade this court that the waiver seriously affected the

fairness, integrity or public reputation of the judicial proceedings. See

M aldonado, 410 F.3d at 1233 (holding defendant bears burden of persuasion

that enforcement of waiver is unlawful).




2
       W e do not address M r. Gamboa’s bald assertions that the record was
tampered with to his detriment. Even so, he has not shown how any alleged
alteration affected his plea agreement.

                                         -5-
                                  Conclusion

      W e GRANT Attorney Shannonhouse’s motion to withdraw as counsel for

M r. Gamboa and the government’s motion to enforce the plea agreement. Appeal

DISM ISSED. The mandate shall issue forthwith.


                                    ENTERED FOR THE COURT
                                    PER CURIAM




                                      -6-
