UNITED STATES CO URT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. SALVADOR PANTOJA-JUAREZ, Defendant-Appellant. No. 13-3004 (D.C. No. 5:12-CR-40077-JAR-1) (D. Kan.)

ORDER AND JUDGMENT *

Before HARTZ , EBEL , and TYMKOVICH , Circuit Judges.

This matter is before the court on the government’s motion to enforce the appeal waiver contained in the plea ag reement executed by defendant-appellant Salvador Pantoja-Juarez. We grant the gove rnment’s motion and di smiss the appeal. Mr. Pantoja-Juarez pled guilty pursuant to a plea agreement to one count of possession with intent to distribute more than 500 grams of powdered cocaine. He

* This panel has determined that oral ar gument 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It ma y be cited, however, for its persuasive value consistent with Fed. R. App. P. 32. 1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 17, 2013

Elisabeth A. Shumaker Clerk of Court- 2 - was sentenced to 60 months’ imprisonment, which was the statutory minimum and the bottom of the sentencing guideline range. As part of his plea agreement, Mr. Pantoja-Juarez “knowingly and voluntarily waive[d] any right to appeal or collaterally attack any matter in connection with this prosecution, [his] conviction, or the components of the sent ence to be imposed herein including the length and conditions of superv ised release.” Mot. for Enforcement, Plea Agrmt., at 8-9. He specifically “waive[d ] the right to a ppeal the sentence imposed in this case except to the extent, if any, the cour t departs or varies upwards from the applicable sentencing guidelin e range determined by the court.” Id. at 9. Despite this waiver, Mr. Pant oja-Juarez filed a notice of appeal and stated in his docketing statement that he intended to ap peal his sentence as procedurally and substantively unreasonable. The government seeks to enforce the appeal waiver, in

accordance with United States v. Hahn , 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). We will enforce an appeal waiver as long as three el ements are met: (1) “the disputed appeal falls within the scope of the appellate waiver”; (2) “the defendant knowingly and voluntarily waived his appell ate rights”; and (3) “enforcing the waiver will [not] result in a miscarriage of justice.” Id. at 1325, 1327. In his response to the government’s motion, Mr. Pa ntoja-Juarez’s counsel con cedes that the sentencing issue Mr. Pantoja-Juarez seeks to raise is within the scope of the waiver. He also concedes that nothing in the record suggest s that Mr. Pantoja-Juar ez’s waiver was not- 3 - knowing and voluntary. Ou r independent review of th e plea agreement and of the Rule 11 colloquy demonstrates th at Mr. Pantoja-Juarez’s waiv er of his right to appeal was knowing and voluntary. See United States v. Salas-Garcia , 698 F.3d 1242, 1254 (10th Cir. 2012).

“Under the final factor of Hahn , the court will enforce an appellate waiver

unless it finds that the enforcement of th e waiver would constit ute a miscarriage of justice.” Id. at 1255 (internal quotation marks omit ted). Enforcement of the waiver will constitute a miscarriage of justice only if one of th e following circumstances is present: (1) “the district court relied on an impermissible factor su ch as race”; (2) the

“ineffective assistance of c ounsel in connection with th e negotiation of the waiver renders the waiver invalid”; (3) “the se ntence exceeds the statutory minimum”; or (4) “the waiver is otherwise unlawful.” Id. (internal quotation ma rks omitted). None of these circumstances are present here. Accordingly, we grant the government’s motion to enforce the appeal waiver and dismiss the appeal.

Entered for the Court Per Curiam