United States v. Bueno-Hernandez , 468 F. App'x 878 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
April 11, 2012
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 11-2216
v. (D.C. No. 1:10-CR-03236-MV-1)
(D. N.M.)
ADRIAN BUENO-HERNANDEZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, O’BRIEN, and TYMKOVICH, Circuit Judges.
This matter is before the court on the government’s motion to enforce the
appeal waiver contained in defendant Adrian Bueno-Hernandez’s plea agreement.
The defendant pleaded guilty to possession with intent to distribute 500 grams or
more of methamphetamine. Pursuant to the plea agreement, the defendant waived
his right to appeal his conviction or his sentence, provided his sentence was
*
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 This order and judgment is not binding precedent, except under the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.
within the statutory maximum authorized by law. The district court sentenced
defendant at the statutory minimum of 120 months’ imprisonment. 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, counsel indicated his intent to file a brief, citing Anders v.
California, 386 U.S. 738 (1967), stating that the appeal presents no legally
non-frivolous issues. 1 We gave defendant an opportunity to file a pro se response
to the motion to enforce, with several extensions of time to respond. To date, he
has not done so.
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. at 1325
(describing the factors this court considers when determining whether to enforce
a waiver of appellate rights).
1
Typically, in an Anders case, counsel requests permission to withdraw
when counsel has conscientiously examined the case and determined that an
appeal would be wholly frivolous. Anders, 386 U.S. at 744. Counsel in this case,
however, has not moved to withdraw.
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Accordingly, we GRANT the motion to enforce the appeal waiver and
DISMISS the appeal.
ENTERED FOR THE COURT
PER CURIAM
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