United States v. Michel-Galaviz ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 11, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-4138
(D.C. No. 2:16-CR-00326-JNP-EJF-1)
MANUEL ALBERTO MICHEL- (D. Utah)
GALAVIZ,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, KELLY, and O’BRIEN, Circuit Judges.
_________________________________
Manuel Alberto Michel-Galaviz pleaded guilty to one count of conspiracy to
distribute methamphetamine and one count of conspiracy to distribute heroin. The
parties entered into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement in which they
stipulated that a reasonable sentence would be no more than 84 months’
imprisonment. The district court accepted the plea agreement and imposed a
sentence of 66 months.1 Despite the broad appeal waiver in his plea agreement,
*
This order and judgment is not binding precedent, except under the doctrines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.
1
The court also imposed a consecutive 24-month sentence in a separate case at
the same time (D.C. No. 2:18-CR-93-JNP), bringing the total sentence to 90 months.
See R., Vol. 1 at 230; id., Vol. 3 at 76.
Mr. Michel-Galaviz filed a notice of appeal. The government has moved to enforce
the appeal waiver under United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004)
(en banc) (per curiam).
Counsel filed a response to the motion to enforce citing Anders v. California,
386 U.S. 738 (1967), Resp. at 1, and stating his belief that “there are no
non-frivolous issues to be raised on behalf of Mr. Michel-Galaviz for appellate
purposes,” id. at 4. Counsel also filed a motion to withdraw. We gave
Mr. Michel-Galaviz an opportunity to respond to the motion to enforce, but he has
not done so.
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.” 359 F.3d at 1325. We have reviewed the
proceedings in accordance with our obligation under Anders. See 386 U.S. at 744.2
We conclude the Hahn factors have been satisfied, and there is no non-frivolous
argument to make against enforcing the appellate waiver. Accordingly, we grant the
2
We note that the government’s motion to enforce purports to attach: the plea
agreement, transcript of the Change of Plea Hearing on January 30, 2018, and
transcript of the Sentencing Hearing on August 17, 2018. See Mot. to Enf. at 2.
However, there were no attachments filed with the motion. We have therefore
reviewed all of these documents from the record. See R., Vol. 1 at 195-201 (Plea
Agreement); id., Vol. 2 at 26-49 (Change of Plea Hearing), id., Vol 3 at 22-83
(Sentencing Hearing).
2
motion to enforce and dismiss this appeal. We also grant counsel’s motion to
withdraw.
Entered for the Court
Per Curiam
3