FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT October 31, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-3198 (D.C. No. 5:17-CR-40043-DDC-1) ADOLFO BARRAGAN-RODRIGUEZ, (D. Kan.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BRISCOE, O’BRIEN, and McHUGH, Circuit Judges. _________________________________ This matter is before the court on the government’s motion to enforce the appeal waiver contained in Adolfo Barragan-Rodriguez’s plea agreement. We grant the government motion to enforce the plea agreement and dismiss the appeal. Barragan-Rodriguez pleaded guilty pursuant to a plea agreement to “a violation of 21 U.S.C. § 841(a)(1), namely possession with the intent to distribute and distribution of methamphetamine.” Mot. to Enforce, Ex. C (Plea Agmt.) at 1. The statutory maximum penalty for this offense is not less than 120 months’ imprisonment and not more than life imprisonment. See 21 U.S.C. § 841(b)(1)(A). * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. In the plea agreement, the parties agreed to a proposed sentence under Fed. R. Crim. P. 11(c)(1)(C), in “[a] range of 120-192 months in prison, with each party given an opportunity to argue for a controlling term of imprisonment within the proposed range.” Plea Agmt. at 3. The district court sentenced Barragan-Rodriguez to 180 months’ imprisonment, five years of supervised release, and imposed a $100 special assessment. The plea agreement included the following waiver of Barragan-Rodriguez’s appellate rights: The defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, his conviction, or the components of the sentence to be imposed herein. . . . The defendant is aware that 18 U.S.C. § 3742 affords him the right to appeal the conviction and sentence imposed. By entering into this agreement, the defendant knowingly waives any right to appeal a sentence imposed in accordance with the sentence recommended by the parties under Rule 11(c)(1)(C). Id. at 6-7. Despite the appeal waiver, Barragan-Rodriguez has filed a notice of appeal in which he seeks to challenge the sentence as an abuse of discretion. The government filed a motion to enforce the plea agreement under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). In evaluating a motion to enforce, 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.” Id. at 1325. 2 Barragan-Rodriguez concedes that the first two Hahn factors are present—his proposed appeal falls within the scope of the waiver and he knowingly and voluntarily waived his appellate rights. His argument is that the “sentence of 180 ...
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