* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court generally

disfavors the citation of orders and judgments; nevertheless, an order and judgment may

be cited under the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 5 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-2373

JAVIER CARBAJAL-RAMOS,

Defendant-Appellant.

(D.C. No. 96-CR-740)

(D. N.M.)

 

ORDER AND JUDGMENT*

 

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**

 

On July 8, 1997, pursuant to a plea agreement, Defendant Javier Carbajal-Ramos

pled guilty to one-count of conspiracy to possess with intent to distribute five kilograms

or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). On

October 28, 1997, the district court sentenced Defendant to 120-months imprisonment,
2

followed by five years of supervised release. Defendant appeals his sentence. Our

jurisdiction arises under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. 

The government argues that the appeal should be dismissed because, by entering

into the plea agreement, Defendant waived his right to appeal the sentence. The written

plea agreement contains the following waiver: 

The defendant is aware that Title 18, United States Code, Section 3742 affords a

defendant the right to appeal the sentence imposed. Acknowledging that, the

defendant knowingly waives the right to appeal any sentence of twelve (12) years

or less on the grounds set forth in Title 18, United States Code, Section 3742 or on

any ground whatever, in exchange for the concessions made by the United States

in this plea agreement. 

We enforce the terms of a lawful plea agreement. See United States v. Hernandez,

134 F.3d 1435, 1437 (10th Cir. 1998). If a defendant knowingly and voluntarily waived

his statutory right to appeal, his sentence is generally enforceable. Id. In this case,

Defendant, who received a ten-year sentence, waived his right to appeal any sentence of

12 years or less. We find nothing in the record suggesting that Defendant did not

knowingly and voluntarily agree to this waiver. 

Defendant, however, unpersuasively argues that his plea was involuntary because

the district court erroneously refused to grant him a minor participant reduction under

U.S.S.G. § 3B1.2(b) and a “safety valve” reduction under U.S.S.G. § 5C1.2. 

Astoundingly, Defendant cites no authority supporting this argument, and we reject it as

meritless. By the plain terms of the plea agreement, Defendant waived his right to appeal

a sentence of 12 years or less on any of the grounds set forth in § 3742. Those grounds
3

include an appeal from a sentence “imposed as a result of an incorrect application of the

sentencing guidelines.” 18 U.S.C. § 3742(1)(2). Defendant now attempts to appeal his

sentence on just that ground. He waived his right to do so, however, in the plea

agreement. Consequently, Defendant’s appeal is

DISMISSED.

Entered for the Court,

Per Curiam