United States v. Hernandez

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 26, 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,
No. 07-3070
v. (D.C. No. 04-CR-20115-JW L)
(D . Kan.)
M AR IA E. HERNA ND EZ,
also known as Nena,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before HA RTZ, GOR SU C H, and HO LM ES, Circuit Judges.
Defendant M aria Hernandez pled guilty to one count of misprision of a
felony in violation of 18 U.S.C. §§ 2 and 4. Pursuant to the plea agreement,
M s. Hernandez waived her right to appeal or collaterally attack any matter in
connection with her prosecution, conviction, and sentence. The agreement further
provided that M s. Hernandez waived her right “to appeal the sentence imposed in
*
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 This order and judgment is not binding precedent, except under the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.
this case except to the extent, if any, the court departs upwards from the
applicable sentencing guideline range.” Plea Agreement at 8, ¶12. The maximum
sentence was a term of imprisonment of three years. M s. Hernandez was
sentenced to twenty-one months imprisonment. She then filed a pro se notice of
appeal. The government has moved to enforce defendant’s appeal waiver under
the procedure set forth in United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.
2004) (en banc).
M s. Hernandez’s attorney filed a response to the government’s motion
stating his belief that there was no legitimate basis for the appeal. This court
gave M s. Hernandez the opportunity to file a pro se opposition to the enforcement
motion, but she failed to file any response within the specified time period,
including several extensions of time. Under Hahn, we consider “(1) whether the
disputed appeal falls within the scope of the waiver of appellate rights;
(2) whether the defendant know ingly and voluntarily waived his appellate rights;
and (3) whether enforcing the waiver would result in a miscarriage of justice.”
Id. Having reviewed the materials submitted by the parties, we conclude that the
Hahn factors favor the government. Accordingly, we G RANT the government’s
motion to enforce the plea agreement and DISM ISS the appeal.
ENTERED FOR THE COURT
PER CURIAM
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