UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JUAN CARLOS CAST ELO ARMIENTA, Defendant - Appellant. No. 15-6205 (D.C. No. 5:14- CR-00294-R-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , MURPHY , and PHILLIPS , Circuit Judges.

________________ _________________ After entering into a plea agreement that included a broad appeal waiver, Defendant Juan Carlos Castel o Armienta pleaded guilty on Ma rch 5, 2015, to one count of conspiracy to possess with intent to dist ribute, and to distribute, methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(A), 846. He was sent enced on October 14, 2015, to 180 months’ imprisonment. Though abov e the 10-year mandatory minimum, the sentence fell below the advisory guidelines range of 292 to 365 months. Despite the appeal waiver, Defendant filed an appeal challenging his sentence as substantively

* After examining the briefs and appellate r ecord, this panel has determined unanimously that oral argument would not ma terially assist in 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 This order and judg ment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 15, 2016
Elisabeth A. Shumaker Clerk of Court2 unreasonable. In its response brief, the government requests that this court enforce the waiver under United States v. Hahn , 359 F.3d 1315 (10th Ci r. 2004) (en banc) (per curiam). We grant the request and dismiss this appeal. Hahn set forth three factors to consider in evaluating an appeal waiver: “(1) whether the disputed appeal fa lls within the scope of the wa iver of appellate rights; (2) whether the defendant knowingl y and voluntarily waived hi s appellate rights; and (3) whether enforcing the waiver would re sult in a miscarriage of justice.” Id. at 1325. We need not address the factors because the opening brief subm itted by counsel for Defendant does not address the appeal wa iver and no reply brief was filed. See United
States v. Porter , 405 F.3d 1136, 1143 (10th Cir. 2005) (declining to address Hahn factor not contested by defendant). But in any ev ent, our independent review of the record confirms that all Hahn factors support enforcing the waiver. First, the issue raised by Defendant falls within the scope of the appeal waiver. The waiver provides: Except as stated imme diately below, defendant waives his right to appeal his sentence as imposed by th e Court, including any restitution, and the manner in which th e sentence is determined. If the sentence is above the advisory guideline range dete rmined by the Court to apply to his case, this waiver does not include the defendant’s right to appeal specifically the substantive reasonableness of his sentence; Plea Agreement, R., Vol. 1 at 33. A challe nge to the substantive reasonableness of a below -guidelines sentence does not come within the waiver’s exception. Second, the record reflects that Defendant knowingly and voluntarily waived his right to appeal. The plea agreement that he signed shows both that he understood that he had a right to appeal3 and that he chose to “kno wingly and voluntarily” waive most of that right. Id. And the district court confirmed with him at the plea hearing that he understood the nature of the charge and the maximum penalty, that he u nderstood the consequences of the appeal waiver, and that he was entering his plea volun tarily. Finally, we se e nothing to suggest that enforcement of the appeal waiver would cause a miscarriage of justice. We GRANT the government’s request to enforce the appeal waiver and DISMISS this appeal. Entered for the Court

Harris L Hartz Circuit Judge