United States v. Rivera-Morales , 357 F. App'x 188 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
December 17, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-2205
(D.C. No. 1:09-CR-01412-JEC-1)
SERVANDO RIVERA-MORALES, (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, LUCERO, and HOLMES, Circuit Judges.
Servando Rivera-Morales pleaded guilty pursuant to a plea agreement to
illegally reentering the United States after having been previously removed, in
violation of 8 U.S.C. §§ 1326(a) and (b). The district court determined that under
the terms of the plea agreement, the guidelines sentencing range was 21 to 27
months’ imprisonment. The court imposed a sentence at the bottom of that range
at 21 months. In his plea agreement, Mr. Rivera-Morales agreed to waive 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 This order and judgment is not binding precedent, except under the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 any sentence imposed within the applicable guidelines range and
in conformity with the plea agreement. Despite this appeal waiver, he filed a
notice of appeal.
The government has moved to enforce the appeal waiver pursuant to United
States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). In
response, Mr. Rivera-Morales’s counsel filed an Anders brief and requested
permission to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967)
(authorizing counsel to request permission to withdraw where counsel
conscientiously examines case and determines that appeal would be wholly
frivolous). Noting that Mr. Rivera-Morales desires to appeal his sentence,
counsel states that upon review of the record and applicable law he found no
reasonable ground for appeal. We gave Mr. Rivera-Morales an opportunity to file
a pro se response to the motion to enforce. See id. To date, he has not done so.
Nevertheless, as required by Anders, we have conducted an independent
review of the plea agreement, plea hearing transcript, sentencing hearing
transcript, and motion to enforce. See id. We conclude that the requirements for
enforcing the plea waiver have been satisfied: (1) this “appeal falls within the
scope of the waiver of appellate rights;” (2) Mr. Rivera-Morales “knowingly and
voluntarily waived his appellate rights;” and (3) “enforcing the waiver would
[not] result in a miscarriage of justice.” Hahn, 359 F.3d at 1325.
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We therefore GRANT the government’s motion to enforce the appeal
waiver and DISMISS the appeal. Also, we GRANT Mr. Rivera-Morales’s
counsel’s motion to withdraw.
ENTERED FOR THE COURT
PER CURIAM
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