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

                            FOR THE TENTH CIRCUIT                         November 21, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-1265
                                                   (D.C. No. 1:17-CR-00119-PAB-2)
 GEORGE AMAYA,                                                 (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

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

      Following his acceptance of a plea agreement that included a waiver of his

right to appeal, George Amaya pleaded guilty to a drug offense and a firearm offense,

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(viii), and 18 U.S.C.

§ 924(c)(1)(A)(i). He was sentenced to 180 months’ imprisonment on the drug

offense and a consecutive term of 60 months’ imprisonment on the firearm offense,

for a total prison term of 240 months (20 years). Despite his waiver, he filed an

appeal.




      *
         This order and judgment is not binding precedent, except under the doctrines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.
      The government has moved to enforce the appeal waiver. See United States v.

Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). In evaluating

the government’s motion, 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. Amaya has filed a response stating

that he “takes no position on” the government’s motion. Resp. at 1.

      Amaya’s waiver of his right to appeal applies unless (1) his sentence exceeds

either (a) the maximum penalty provided in the statute of conviction or (b) the

advisory guideline range applicable to a total offense level or 33, or (2) the

government appeals his sentence. In his Docketing Statement, Amaya states that he

intends to appeal his sentence, while reserving his ability to assert additional claims

on appeal.

      Amaya’s appeal waiver is enforceable. His intended appeal of his sentence is

within the scope of the waiver because his sentence does not exceed either the

maximum statutory penalties for his offenses or the advisory guideline range

referenced in his waiver. An appeal challenging any other aspect of his prosecution

and conviction is also covered by the scope of the waiver. The plea agreement

clearly sets forth the waiver and states that it was knowing and voluntary; the district

court addressed the waiver and voluntariness at the plea hearing; and there is no

contradictory evidence indicating that Amaya did not knowingly and voluntarily



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accept the waiver. Finally, there is no indication that enforcing the waiver would

result in a miscarriage of justice as defined in Hahn, 359 F.3d at 1327.

      The motion to enforce is granted and the appeal is dismissed.


                                           Entered for the Court
                                           Per Curiam




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