                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      January 22, 2007
                            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. 06-4202
                                                 (D.C. No. 2:06-CR -136-TS)
    ISIDRO M ORENO-RO BLES,                              (D. Utah)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before L UC ER O, EBEL, and TM YKOVICH, Circuit Judges.




         Defendant Isidro M oreno-Robles, a native of M exico, was removed from

the United States on January 20, 2004. Despite his removal, he reentered the

United States without permission from the Secretary of the Department of

Homeland Security. After being found in the United States in February 2006, he




*
      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 This order and judgment is not binding precedent, except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
was charged with illegally reentering the United States as a previously removed

alien in violation of 8 U.S.C. § 1326.

      M r. M oreno-Robles pled guilty to that charge. Under the terms of the plea

agreement, he waived his right to appeal any sentence imposed upon him on any

grounds, except that he did not waive the right to appeal any sentence imposed

above the statutory maximum penalty or any sentence imposed with an upward

departure from the high end of the Guidelines range. Statement by Def. in

Advance of Plea of Guilty at 3-4. The agreement set forth M r. M oreno-Robles’

understanding that the statutory maximum sentence w as twenty years’

imprisonment. Id. at 1. The district court sentenced M r. M oreno-Robles to

fifty-seven months’ imprisonment, which was below the statutory maximum

sentence and at the low end of the sentencing Guidelines. 1 Notwithstanding the

appeal waiver, he appealed. The government moved to enforce the appeal waiver

under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (per curiam) (en

banc). For the reasons explained below, we grant the motion and dismiss the

appeal.

      In Hahn, 359 F.3d at 1325, we held that a waiver of appellate rights will be

enforced if (1) “the disputed appeal falls within the scope of the waiver of



1
       During the same sentencing proceeding, the district court also sentenced
M r. M oreno-Robles to a consecutive twenty-four months of imprisonment for
violation of the terms of his supervised release. Change of Plea & Sentencing
Tr. at 31.

                                         -2-
appellate rights; (2) [] the defendant knowingly and voluntarily waived his

appellate rights; and (3) [] enforcing the waiver would [not] result in a

miscarriage of justice.” M r. M oreno-Robles concedes that his appeal falls within

the scope of the waiver of appellate rights and that he knowingly and voluntarily

waived those rights. W e therefore need not address these two factors. See United

States v. Porter, 405 F.3d 1136, 1143 (10th Cir.) (recognizing that court need not

address each Hahn factor if defendant does not raise issue relating to that factor),

cert. denied, 126 S. Ct. 550 (2005).

      M r. M oreno-Robles argues that enforcement of the plea agreement will

result in a miscarriage of justice.

      Specifically, [he] . . . assert[s] that his appeal waiver should not be
      enforced because of the lengthy total sentence of 81 months, based
      on the 57 months imposed in this case and an additional 24 months
      due to a supervised release violation. The sentence imposed in this
      case was based solely upon the district court’s adoption of the
      sentencing guideline recommendation, without significant explicit
      consideration of other sentencing factors listed in 18 U.S.C.
      § [3553], 2 including the fact discussed at the sentencing hearing, that
      M r. M oreno-Robles is a single parent of three children, and returns to
      this country in order to earn enough to support these children.

M em. in Opp’n to M ot. to Dismiss at 2.

      The miscarriage-of-justice factor requires the defendant to show one of the

following: (a) his sentence relied on an impermissible factor such as race;




2
     Although M r. M oreno-Robles cites to 18 U.S.C. § 3355, we assume he
means 18 U.S.C. § 3553.

                                           -3-
(b) ineffective assistance of counsel in connection with the negotiation of the

appeal waiver rendered the w aiver invalid; (c) his sentence exceeded the statutory

maximum; or (d) his appeal waiver w as otherw ise unlawful. Hahn, 359 F.3d at

1327. Although M r. M oreno-Robles does not specifically identify which of these

four he relies on, we assume that he is referring to the fourth category as that is

the category in which his arguments best fit. For a fourth category unlawful

waiver, the error must “seriously affect[] the fairness, integrity or public

reputation of the judicial proceedings.” See id. (quotation omitted).

      M r. M oreno-Robles bears the burden to persuade us that his appellate

waiver is unlawful. United States v. M aldonado, 410 F.3d 1231, 1233 (10th Cir.)

(per curiam), cert. denied, 126 S. Ct. 577 (2005). After review ing the appellate

filings, we conclude that he has not met his burden. His arguments concern the

lawfulness of his sentence; he has not asserted any claim regarding the critical

issue of whether his appeal waiver itself was unlawful. See Porter, 405 F.3d at

1144 (“The relevant question . . . is not whether [defendant’s] sentence is

unlaw ful . . . , but whether . . . his appeal waiver itself [is] unenforceable.”); see

also Hahn, 359 F.3d at 1326 & n.12 (discussing knowing and voluntary prong and

recognizing “the logical failings of focusing on the result of a proceeding, rather

than on the right relinquished, in analyzing whether an appeal waiver is

unknowing or involuntary”). Nor has he shown that enforcement of the waiver




                                           -4-
would seriously affect the fairness, integrity, or public reputation of the judicial

proceedings.

      M r. M oreno-Robles received two separate consecutive sentences, one for

fifty-seven months’ imprisonment for the illegal-reentry conviction and one for

tw enty-four months’ imprisonment for the violation of supervised release. See

United States v. Urcino-Sotello, 269 F.3d 1195, 1196-97 (10th Cir. 2001)

(recognizing sentences are separate); Change of Plea & Sentencing Tr. at 3

(district court’s recognition that cases are separate). Only the illegal-reentry

conviction is at issue in this case. M r. M oreno-Robles’ appeal waiver applies

only to that conviction and does not even mention the supervised-release

violation. During the plea colloquy, M r. M oreno-Robles stated that no one had

promised him anything other than what was contained in the plea agreement.

Change of Plea & Sentencing Tr. at 7.

      The plea agreement clearly set out the maximum sentence

M r. M oreno-Robles faced and explained the appellate rights he relinquished in

exchange for the benefits offered by the government. In addition, the sentence he

received for the illegal-reentry conviction complied with the terms of the plea

agreement and with his expressed understanding of the plea agreement. See

M aldonado, 410 F.3d at 1234. W e therefore conclude that M r. M oreno-Robles

has failed to show any error affecting the fairness, integrity, or public reputation

of his judicial proceedings. See Hahn, 359 F.3d at 1327.

                                          -5-
      Accordingly, we GRANT the government’s motion to enforce the plea

agreement and DISM ISS the appeal. The mandate shall issue forthwith.



                                    ENTERED FOR THE COURT
                                    PER CURIAM




                                      -6-
