United States v. Vazquez

FILED
United States Court of Appeals
Tenth Circuit
October 28, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-7040
(D.C. No. 6:07-CR-00047-RAW-11)
FERNANDO VAZQUEZ, (E.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, LUCERO, and HOLMES, Circuit Judges.
This matter is before the court on the government’s motion to enforce the
appeal waiver contained in defendant Fernando Vazquez’s plea agreement. The
defendant pleaded guilty to conspiracy to possess with intent to distribute and
distribution of controlled substances. Pursuant to the plea agreement, the
defendant waived his right to appeal his conviction or his sentence, provided his
sentence was within the statutory maximum authorized by law and within the
*
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 This order and judgment is not binding precedent, except under the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.
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’s counsel stated that there are no non-frivolous
arguments that can be presented in response to the motion to enforce, citing
Anders v. California, 386 U.S. 738, 744 (1967), and requesting permission to
withdraw as counsel. This court gave the defendant an opportunity to file a pro se
response to the motion to enforce, see id., and granted him an extension of time to
file his response to the motion. To date, the defendant has not filed a response to
the motion to enforce.
Under Anders, we have reviewed the motion and the record and we
conclude 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 Hahn,
359 F.3d at 1325 (describing the factors this court considers when determining
whether to enforce a waiver of appellate rights).
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Accordingly, we GRANT the motion to enforce the appeal waiver, GRANT
counsel’s motion to withdraw, and DISMISS the appeal.
ENTERED FOR THE COURT
PER CURIAM
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