                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               February 26, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                          FOR THE TENTH CIRCUIT


 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

 v.                                                     No. 09-2156
                                             (D.C. No. 2:09-CR-00438-MCA-1)
 MANUEL SOSA-MORENO,                                     (D. N.M.)

             Defendant-Appellant.


                          ORDER AND JUDGMENT *


Before HARTZ, McKAY, and ANDERSON, Circuit Judges.


      Manuel Sosa-Moreno pleaded guilty to one count of re-entering the United

States after having been deported, and was sentenced to 51 months’

imprisonment. On appeal he argues that the district court violated his right to

allocution, and that his sentence is substantively unreasonable. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a); we dismiss the

appeal in accordance with the appeal waiver in the parties’ plea agreement.


      *
              After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
I.    BACKGROUND

      On December 23, 2008, Mr. Sosa-Moreno was deported from the United

States to Mexico. Three days later he was apprehended by Border Patrol agents

in New Mexico, and ultimately charged with violating 8 U.S.C. § 1326, which

proscribes re-entry by certain removed aliens.

      Mr. Sosa-Moreno entered into a plea agreement under which he would

plead guilty in exchange for the government’s agreeing to a reduced offense level

based on his acceptance of responsibility and participation in a Fast Track plea

agreement. The final adjusted offense level would depend, however, on his “most

serious prior criminal conviction as recommended by the U.S. Probation Office.”

R., Vol. 1 at 12–13. The plea agreement also contained the following appellate

waiver: “[Mr. Sosa-Moreno] knowingly waives the right to appeal any sentence

within the applicable sentencing guideline range and imposed in conformity with

this plea agreement.” Id. at 14. During the plea hearing the magistrate judge

addressed the appeal waiver, and Mr. Sosa-Moreno stated that he had discussed it

with his attorney.

      At sentencing, Mr. Sosa-Moreno’s counsel commented that the criminal-

history category was “higher than [counsel] had anticipated.” Id., Vol. 3 at 7.

Nevertheless, counsel indicated that Mr. Sosa-Moreno did not wish to withdraw

from the plea agreement, but rather wanted the court to “know he felt it was too

much time.” Id. The court then offered Sosa-Moreno an opportunity to allocute:

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             THE COURT: All right. Let me ask you, sir, is there anything
      you wish to say on your behalf that you wish for me to consider here
      before I sentence you? If so, you may do so at this time.
             MR. SOSA-MORENO: Well, to cancel today’s court hearing.
             THE COURT: Well, something besides that. Anything else
      you wish for me to consider?
             MR. SOSA-MORENO: Yes, because it’s very little time for
      the sentencing. I have had very little time.
             THE COURT: All right.

Id. After hearing no objections to the presentence report, the court accepted the

plea agreement, noted the agreement’s appeal waiver, and sentenced Mr. Sosa-

Moreno to 51 months’ imprisonment. He was given a final opportunity at the

conclusion of the hearing to contest the sentence, but he did not. Mr. Sosa-

Moreno now appeals, arguing that he was denied the right to allocution, and that

his sentence is substantively unreasonable because of its length.

II.   DISCUSSION

      “A defendant may not appeal [his] sentence if [he] has waived [his]

appellate rights in an enforceable plea agreement.” United States v. Smith,

500 F.3d 1206, 1210 (10th Cir. 2007). Although the government failed to invoke

the appeal waiver by filing a motion under Tenth Circuit Rule 27.2(A)(1)(d), it

properly invoked the waiver in its appellate brief. See United States v.

Contreras-Ramos, 457 F.3d 1144, 1145 (10th Cir. 2006).

      “This Court employs a three-pronged analysis to determine whether to

enforce a waiver of appellate rights.” Smith, 500 F.3d at 1210. We examine “(1)

whether the disputed appeal falls within the scope of the waiver of appellate

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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.” United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc).

      In his reply brief, Mr. Sosa-Moreno concedes that his

substantive-unreasonableness argument is barred by the plea agreement’s

appeal-waiver provision and this circuit’s precedent. But he maintains that his

allocution argument is not covered by the waiver’s language. We disagree. The

waiver forbids him to challenge “any sentence within the applicable sentencing

guideline range.” R., Vol. 1 at 14. And Mr. Sosa-Moreno does not claim that his

sentence was outside that range. His allocution argument is a challenge to his

sentence, because the only relief that he seeks is to have his sentence vacated. Cf.

Smith, 500 F.3d at 1210 (concluding that the language, “‘defendant waives the

right to appeal the sentence imposed in this case except to the extent, if any, the

court departs upwards from the applicable sentencing guideline range,’” covered

all appellate challenges to the sentence except those regarding upward

departures).

      As to whether Mr. Sosa-Moreno’s waiver was knowing and voluntary, it

was discussed at both the plea hearing and the sentencing hearing. At the plea

hearing Mr. Sosa-Moreno stated that he had discussed it with defense counsel. At

the sentencing hearing he did not raise it as an issue despite ample opportunity to

do so. Further, the plea agreement itself states that he “knowingly waives the

                                          -4-
right to appeal,” and that the plea “is freely and voluntarily made.” R., Vol. 1 at

14, 15. Mr. Sosa-Moreno has not identified any “evidence from the record

establishing that he did not understand the waiver.” United States v. Edgar,

348 F.3d 867, 872–73 (10th Cir. 2003). We conclude that he knowingly and

voluntarily waived his appeal rights.

      Finally, enforcing the waiver under the circumstances of this case will not

result in a miscarriage of justice. See Hahn, 359 F.3d at 1327 (indicating that an

appellate waiver’s enforcement results in a miscarriage of justice (1) when the

district court relied on an impermissible factor such as race, (2) when ineffective

assistance of counsel in connection with the waiver’s negotiation invalidates the

waiver, (3) when the sentence exceeds the statutory maximum, or (4) when the

waiver is otherwise unlawful and seriously affects the fairness, integrity, or public

reputation of judicial proceedings). Even if a denial of allocution could be an

example of error that fits into the fourth category (seriously affecting the fairness,

integrity, or public reputation of judicial proceedings), see United States v.

Gonzalez-Huerta, 403 F.3d 727, 736, 739 (10th Cir. 2005) (en banc), Mr. Sosa-

Moreno’s core allocution rights were not violated. At sentencing, the district

court must “address the defendant personally in order to permit the defendant to

speak or present any information to mitigate the sentence.” Fed. R. Crim. P.

32(i)(4)(A)(ii). Here, the district court did just that. But instead of offering

mitigating information, Mr. Sosa-Moreno sought to postpone the sentencing

                                          -5-
hearing. The hearing was conducted 80 days after entry of his guilty plea and 30

days after disclosure of the presentence report; and neither he nor his attorney had

previously expressed any need (or even desire) for a continuance. The district

court had sound reason to restrict Mr. Sosa-Moreno to comments on the substance

of his sentence; and nothing in the court’s ruling could “seriously affect the

fairness, integrity, or public reputation of judicial proceedings.” Hahn, 359 F.3d

at 1327 (brackets and internal quotation marks omitted). See United States v.

Muniz, 1 F.3d 1018, 1025 (10th Cir. 1993) (the right of allocution did not give

defendant the right to reargue the case). 1

III.   CONCLUSION

       The appeal is DISMISSED.

                                                     Entered for the Court


                                                     Harris L Hartz
                                                     Circuit Judge



       1
        The government argues that this court lacks jurisdiction over
Mr. Sosa-Moreno’s appeal because he “agree[d] to and receive[d] a specific
sentence” under Fed. R. Crim. P. 11(c)(1)(C). Aplee. Br. at 5. The government is
correct that “[i]n the case of a plea agreement that includes a specific sentence
under rule 11(e)(1)(C) [the predecessor to Rule 11(c)(1)(C)] of the Federal Rules
of Criminal Procedure,” 18 U.S.C. § 3742(c), the defendant “may appeal the
sentence only if it was (1) imposed in violation of the law, (2) imposed as a result
of an incorrect application of the Guidelines, or (3) is greater than the sentence
set forth in the plea agreement.” United States v. Calderon, 428 F.3d 928, 932
(10th Cir. 2005). But a sentence imposed without allocution could be a sentence
imposed in violation of law.

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