United States v. Arizmendi-Moreno , 598 F. App'x 601 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 23, 2015
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-1429
(D.C. No. 1:13-CR-00160-PAB-17)
MARTIN ARIZMENDI-MORENO, (D. Colo.)
a/k/a Chaleco,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before GORSUCH, HOLMES, and MATHESON, Circuit Judges.
Martin Arizmendi-Moreno entered into a plea agreement that included a
waiver of his right to appeal. He pleaded guilty to use of a communication facility to
facilitate a felony drug transaction in violation of 21 U.S.C. § 843(b) and (d)(1) and
was sentenced to forty-eight months of imprisonment. Despite the appeal waiver, he
appealed. Citing United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc)
*
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. 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
(per curiam), the government moves to enforce the appeal waiver. We grant the
motion and dismiss the appeal.
In evaluating a motion to enforce a waiver, 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. Arizmendi-Moreno, through counsel, concedes that the appeal waiver contained
in the plea agreement is enforceable. Upon our independent review of the plea
agreement and plea and sentencing hearing transcripts, we conclude that
Mr. Arizmendi-Moreno cannot establish any of the applicable exceptions to
enforcement of the appeal waiver and therefore the appeal waiver should be enforced.
Accordingly, we grant the motion to enforce, and we dismiss this appeal
Entered for the Court
Per Curiam
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