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Date: Filed /
STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
ORDER AND JUDGMENT(*)
Before LUCERO, HARTZ, and
TYMKOVICH, Circuit Judges.
Defendant Agustin Tovar-Chavez pled guilty to one count of illegal reentry
to the United States after deportation subsequent to a felony conviction, in
violation of 8 U.S.C. §§ 1326(a)(1), (a)(2) and 8 U.S.C.
§ 1326(b)(2). Pursuant
to the plea agreement, Mr. Tovar-Chavez waived his "right to appeal any
sentence within the [applicable] statutory range." Mot. to Enforce, Ex. A, at 5.
Appearing pro se, Mr. Tovar-Chavez filed a notice of appeal from his conviction
and sentence. The government has filed a motion to enforce its plea agreement
with Mr. Tovar-Chavez. Mr. Tovar-Chavez's attorney filed a response to the
government's motion stating his belief that there is no legitimate basis for an
appeal.(1) We grant the government's
motion and, accordingly, dismiss the appeal.
This court will enforce a criminal defendant's waiver of his right to appeal
so long as the following three elements are satisfied: (1) "the disputed appeal
falls within the scope of the waiver of appellate rights," (2) the defendant's
waiver of his appellate rights was knowing and voluntary, and (3) enforcing the
waiver will not result in a miscarriage of justice. United States v. Hahn, 359
F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). We have reviewed the
plea agreement and the response from Mr. Tovar-Chavez's counsel, and we
conclude that the Hahn factors have been satisfied.
Accordingly, we GRANT the government's motion to enforce the plea
agreement and DISMISS the appeal. The mandate shall issue forthwith.
ENTERED FOR THE COURT
Click footnote number to return to corresponding location in the text.
*. 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 This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1. This court attempted to give Mr.
Tovar-Chavez an opportunity to file an
opposition to the government's enforcement motion, but the court's
correspondence to him was returned, marked as refused.
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