United States v. Quintana-Cenejo , 667 F. App'x 289 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 17, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-1060
(D.C. No. 1:15-CR-00256-REB-DW-1)
SALVADOR QUINTANA-CENEJO, (D. Colo.)
a/k/a Jose Jesus Ortega Hernandez,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, O’BRIEN, and MATHESON, Circuit Judges.
_________________________________
Following his acceptance of a plea agreement that included a waiver of his
right to appeal, Salvador Quintana-Cenejo pleaded guilty to illegal reentry after
removal and subsequent to a felony conviction, in violation of 8 U.S.C. § 1326(a) and
(b)(1). He was sentenced to eight months’ imprisonment. Despite his waiver,
Quintana-Cenejo filed an appeal. The government moves to enforce
Quintana-Cenejo’s appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328
(10th Cir. 2004) (en banc) (per curiam).
*
This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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.
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.
Quintana-Cenejo’s counsel has filed a response, “conced[ing] that, under the standard
announced in [Hahn], the plea agreement’s appeal waiver is enforceable with respect
to this direct appeal.” Aplt. Resp. at 1.
Our independent review confirms that Quintana-Cenejo’s appeal waiver is
enforceable. The issue he seeks to raise on appeal—a challenge to the substantive
and procedural reasonableness of his sentence—falls within the scope of his appeal
waiver and is not subject to any of the exceptions to that waiver. The plea agreement
also clearly sets forth the appeal waiver, stating that it was knowing and voluntary,
and the district court confirmed Quintana-Cenejo’s understanding of his appeal
waiver during his change of plea hearing. Moreover, we see no evidence
contradicting Quintana-Cenejo’s knowing and voluntary acceptance of the appeal
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 this matter is dismissed.
Entered for the Court
Per Curiam
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