                                                                           FILED
                                                               United States Court of Appeals
                                      PUBLISH                          Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  February 18, 2015

                                                                   Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                       Clerk of Court


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                        No. 14-1383

MARCOS GARCIA-RAMIREZ,
a/k/a Marco Garcia,

             Defendant - Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF COLORADO
                   (D.C. No. 1:14-CR-00121-RM-1)


Submitted on the motion and response:*

Virginia L. Grady, Federal Public Defender, Jill M. Wichlens, Assistant
Federal Public Defender, Chief, Appellate Division, Denver, Colorado, for
Defendant - Appellant.

John F. Walsh, United States Attorney, Catherine Gleeson, Special Assistant United
States Attorney, Denver, Colorado, for Plaintiff - Appellee.


Before BRISCOE, Chief Judge, O’BRIEN and McHUGH, Circuit Judges.



*
       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.
PER CURIAM.


      After entering into a plea agreement that included an appeal waiver, Marcos

Garcia-Ramirez pleaded guilty to one count of illegal reentry to the United States.

He was sentenced to 19 months’ imprisonment. Despite the appeal waiver,

Mr. Garcia-Ramirez has filed a notice of appeal in which he challenges his sentence

as “unreasonable.” Dktg. Stmt. at 4. 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). We grant the motion and dismiss the appeal.

      In evaluating a motion to enforce a waiver under Hahn, 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. Mr. Garcia-Ramirez does not dispute any of the Hahn factors. Instead,

in a single sentence citing United States v. Black, 773 F.3d 1113, 1115 n.2 (10th Cir.

2014), he urges this court to “exercise [its] discretion to bypass any decision on

whether to enforce an appeal waiver, and . . . instead proceed to the merits of the

appeal.” Resp. at 1.

      Mr. Garcia-Ramirez’s argument is based on a misreading of Black. It was

appropriate to bypass resolution of the waiver issue in Black because (1) the waiver




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issue was relatively complex, (2) the government had briefed the merits,1 and

(3) Black’s appellate argument clearly failed. Because this court was able to

determine there was no merit to Black’s substantive claim, the appeal could be

affirmed without devoting judicial resources to decide the waiver issue. In short,

Black merely addressed a matter of judicial economy in deciding cases, it signaled no

change in our appeal waiver jurisprudence.

      In addition to misreading Black, Mr. Garcia-Ramirez cites no authority for the

proposition that this court could grant him relief on the merits of his claim without

first resolving the waiver issue in his favor. And on this issue, Mr. Garcia-Ramirez

fails to discuss any of the Hahn factors or otherwise argue that the waiver should not

be enforced. Last, under these circumstances it would be wrong to forgo resolution

of the motion to enforce and require briefing on the merits. To do so would deprive

the government of a key benefit of its plea bargain, which the preliminary motion-to-

enforce protocol in Hahn was designed to protect. See Hahn, 359 F.3d at 1328.

      The motion to enforce is granted, and this appeal is dismissed.




1
      The government first moved to enforce the appeal waiver in its answer brief,
which also addressed the merits.


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