UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JUAN SERGIO LOERA-HERRERA, Defendant - Appellant. No. 19-1402 (D.C. No. 1:19-CR -00258-PAB-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , EID , and CARSON , Circuit Judges.

________________ _________________ This matter is before the court on th e government’s motion to enforce the appeal waiver in Juan Sergio Loer a-Herrera’s plea agre ement pursuant to United States v. Hahn , 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). Exercising jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal. Loera-Herrera pleaded guilty to illegal r eentry by a previously deported alien, in violation of 8 U.S.C. § 1326(a). As part of his plea agreem ent, he waived his right to appeal his conviction and sentence, unl ess the government appealed the sentence

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 16, 2020 Christopher M. Wolpert Clerk of Court2 or the sentence exceeded either the ten-year statutory maximum, see 8 U.S.C. § 1326(b)(1), or the advisory guideline range a pplicable to a total offense level of 12. The plea agreement acknowledged that Loera-Herrera was entering his plea knowingly and voluntarily a nd that he understood its c onsequences, including the possible sentences and appeal waiver. At the change of plea hearing, the district court reminded him of the possible senten ces and broad appeal waiver, and he confirmed that he understood and that he wanted to plead guilty. Based on his responses to the court’s que stions and its observations of his demeanor during the hearing, the court accepted Loera-Herr era’s plea as having been knowingly and voluntarily entered. It then sentenced him to 21 months’ imprisonment, which was well below the statutory maximum and at th e bottom of the guideline range of 21 to 27 months applicable to a to tal offense level of 12. Th e government did not appeal the sentence. Despite the fact none of the exceptions to the appeal waiver applied, Loera-Herrera filed a notice of appeal. In ruling on a motion to enforce, we consider: “(1) whether the disputed appeal falls within the scope of the waiver of appella te 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.” Hahn , 359 F.3d at 1325. In response to the government’s motion to enforce, Loera-Herrera, through counsel, “acknowledge[d] that his appeal waiv er is enforceable u nder the standard sot out in [ Hahn ].” Aplt. Resp. at 1. He thus c onceded that his waiver was knowing and3 voluntary, that his appeal fa lls within the scope of the waiver, and that enforcement of the waiver would not result in a miscarriage of justice. See United States v.
Porter , 405 F.3d 1136, 1143 (10th Cir. 2005) ( noting that court need not address uncontested Hahn factor). Accordingly, we grant the government’s motion to enforce the appeal waiver and dismiss the appeal.

Entered for the Court Per Curiam