UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JESUS GARCIA-SALAS, a/k/a Don Chuy, Defendant - Appellant. No. 14-1357 (D.C. No. 1:13-CR-00161-REB-9) (D. Colo.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, LUCERO and MATHESON , Circuit Judges.
After accepting a plea agreement that incl uded a waiver of his right to appeal, Jesus Garcia-Salas pleaded guilty to one count of possession of a controlled substance with intent to di stribute. He was sentenced to 61 months’ imprisonment – a below-Guidelines sentence. Notwithstanding the appeal waiver, Mr. Garcia-Salas has filed a notice of appeal that identifies two issues: “Appellant believes that the sentence imposed violated the terms of the plea agreement as he understood them to

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### February 5, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - be when he agreed to the sa me; [and] Appellant wants to a ppeal the sentence that was imposed on him.” Dktg. Stmt. at 5. Th e government has moved to enforce the waiver. See United States v. Hahn , 359 F.3d 1315, 1328 ( 10th Cir. 2004) (en banc) (per curiam). We grant the motion and dismiss the appeal. In evaluating a motion to enforce a waiver under Hahn , we consider: “(1) whether the disputed a ppeal falls within the scope of the waiver of appellate rights; (2) whether the defe ndant knowingly and voluntar ily waived his appellate rights; and (3) whether enforcing the waiver would result in a misca rriage of justice.” Id . at 1325. The written plea agreement executed by Mr . Garcia-Salas precludes an appeal unless it meets one of the following three criteria: (1) the sentence imposed is above the maximum pena lty provided in the statute of conviction, (2) the Court, after de termining the otherwise applicable sentencing guideline range, either depart s or varies upwardly, or (3) the Court determines that the offense leve l is greater than 36 (prior to any reduction for safety valve or accept ance of responsibility) and imposes a sentence based upon that offens e level determination. Plea Agmt. at 4. And at the change of plea hearing Mr. Garcia-Salas acknowledged he was waiving the right of appeal subject only to the ex ceptions stated in the plea agreement. See Plea Hr’g Tr. at 21-24. Mr. Garcia-Salas’s counsel has filed a response to the government’s motion to enforce, in which he states that the district court’s “findings, conclusions and judgment did not trigger any of the exceptions to the appeal waiver.” Resp. at 2. In other words, he concedes that the appeal falls w ithin the scope of the waiver. As to- 3 - the other Hahn factors (whether the waiver was knowing and voluntary or would result in a miscarri age of justice) he makes no argum ent. As such, the motion to enforce is granted and this matter is dismissed.

Entered for the Court Per Curiam