                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         AUG 23 2004
                 UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                 TENTH CIRCUIT                                Clerk




 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 03-3175
 v.
                                              (D.C. No. 02-CR-20073-02-JWL)
                                                          (Kansas)
 LEONARDO SANCHEZ-SANCHEZ,
 also known as Ne Ne,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.


      Pending before this court are Leonardo Sanchez-Sanchez’s direct appeal

and the United States’ motion to dismiss for lack of subject matter jurisdiction.

We clearly have subject matter jurisdiction. See United States v. Hahn, 359 F.3d

      *
       After examining appellant’s brief and the appellate record, 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
1315, 1324 (10th Cir. 2004). Because Mr. Sanchez-Sanchez voluntarily entered

into a valid waiver barring this appeal, however, we dismiss the appeal.

      Mr. Sanchez-Sanchez pleaded guilty in Kansas district court to “knowingly

and intentionally distribut[ing] and aid[ing] and abett[ing] . . . [in the distribution

of] 100 grams or more of a mixture and substance containing a detectable amount

of heroin.” Rec., vol. I, doc. 87, at 5, 10. The plea agreement he signed included

a waiver of appeal. Aplt. App. at 12. He nevertheless now complains that the

government objected to the sentencing calculation in his presentence report,

introduced relevant conduct increasing that sentencing calculation, and refused to

move for an adjustment for substantial cooperation, all in violation of the contract

principles governing his plea. Aplt. Br. at 4-5.

      We set forth the analytical framework for such claims in Hahn:

      [I]n reviewing appeals brought after a defendant has entered into an
      appeal waiver, [we] determine: (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 . . . .

359 F.3d at 1325. Clearly, this appeal falls within the scope of Mr. Sanchez-

Sanchez’s waiver. The plea agreement plainly states that he “waives any right to

appeal a sentence imposed which is within the guideline range determined

appropriate by the court.” Aplt. App. at 12. Mr. Sanchez-Sanchez’s sentence is

within that range. Rec., vol. III, at 19-20. And Mr. Sanchez-Sanchez knowingly

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and voluntarily waived the right to appeal. See Aplt. App. at 12.

      In determining whether the waiver constitutes a miscarriage of justice, we

consider:

      [(1) whether] the district court relied on an impermissible factor such
      as race, [(2) whether] ineffective assistance of counsel in connection
      with the negotiation of the waiver renders the waiver invalid, [(3)
      whether] the sentence exceeds the statutory maximum, or [(4)
      whether the waiver is otherwise unlawful, . . . [meaning] error . . .
      seriously affect[s] the fairness, integrity or public reputation of
      judicial proceedings.

Hahn, 359 F.3d at 1327 (citations and quotations omitted). Mr. Sanchez-Sanchez

points to no such failings in his plea.

      Rather, Mr. Sanchez-Sanchez claims “the purpose of the plea agreement

was frustrated,” and the government “should have been estopped . . . from

presenting evidence of relevant conduct.” Aplt. Br. at 5-6. He requests that we

remand so he may be sentenced according to the sentencing calculation on record

prior to the introduction of relevant conduct. Id.

      The difficulty with Mr. Sanchez-Sanchez’s argument is that his plea

agreement explicitly allowed introduction of relevant conduct evidence and

permitted the government to determine whether he had provided substantial

assistance prior to moving for a downward departure. Aplt. App. at 8, 10. Mr.

Sanchez-Sanchez’s attorney also recognized the admissibility of relevant conduct

evidence in district court. Rec., vol. II, at 68 (“I’m not suggesting the plea


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agreement prohibits the government from presenting evidence regarding relevant

conduct.”). Although the government did not move for a downward departure,

which it was not bound to do, the district court gave Mr. Sanchez-Sanchez credit

for some cooperation in sentencing him to the low end of the applicable range.

Rec., vol. III, at 19-20.

       Mr. Sanchez-Sanchez’s arguments that this course of events frustrated the

purpose of his plea, Aplt. Br. at 5, and that the government was “unjustly

enriched” thereby, id. at 6, do not comport with the record. “The plea agreement

must be construed according to what defendant reasonably understood at the time

he made the agreement.” United States v. Prince, 204 F.3d 1021, 1023 (10th Cir.

2000). We cannot conclude that what transpired in district court is anything other

than what Mr. Sanchez-Sanchez reasonably should have contemplated.

       For the foregoing reasons, we DENY the government’s motion to dismiss

for lack of subject matter jurisdiction and DISMISS Mr. Sanchez-Sanchez’s

appeal.

                                       ENTERED FOR THE COURT

                                       Stephanie K. Seymour
                                       Circuit Judge




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