United States v. Nunez

FILED
United States Court of Appeals
Tenth Circuit
July 21, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-3064
(D.C. No. 5:09-CR-40039-RDR-1)
FRANCISCO NUNEZ, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HARTZ, O’BRIEN, and HOLMES, Circuit Judges.
This matter is before the court on the government’s motion to enforce the
appeal waiver contained in defendant Francisco Nunez’s plea agreement. The
defendant pleaded guilty to conspiracy to possess with intent to distribute and
dispense 500 grams or more of a mixture containing a detectable amount of
methamphetamine. Pursuant to the plea agreement, the defendant waived his
*
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 This order and judgment is not binding precedent, except under the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.
right to appeal his conviction or his sentence, provided his sentence was within
the statutory maximum authorized by law and within the advisory sentencing
guideline range determined by the district court to apply. The defendant’s
sentence was below the statutory maximum and within the advisory guideline
range. Nevertheless, the defendant filed a notice of appeal.
The government filed a motion to enforce the plea agreement pursuant to
United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).
In response, the defendant concedes through counsel that there are no non-
frivolous arguments that can be presented in response to the motion to enforce.
We have reviewed the motion, the record and the defendant’s response, and we
agree that the defendant’s proposed appeal falls within the scope of the appeal
waiver, that he knowingly and voluntarily waived his appellate rights, and that
enforcing the waiver would not result in a miscarriage of justice. See id.,
359 F.3d at 1325 (describing the factors this court considers when determining
whether to enforce a waiver of appellate rights).
Accordingly, we GRANT the motion to enforce the appeal waiver and
DISMISS the appeal. Counsel for appellant is reminded that the fee remains due
in this appeal.
ENTERED FOR THE COURT
PER CURIAM
-2-