This panel has determined unanimously that oral argument 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 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and

10th Cir. R. 32.1. 

F I LED

United States Court of Appeals

Tenth Circuit

January 9, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

 v.

EFRAIN MENDOZA BARBOSA, also

known as Juan Jose Alverez,

 Defendant-Appellant.

No. 06-6267

(D.C. No. 05-CR-191-001-T)

(W.D. Okla.)

ORDER AND JUDGMENT

*

Before BRISCOE, MURPHY, and LUCERO, Circuit Judges.

Defendant Efrain Mendoza Barbosa pled guilty to one count of interstate or

foreign travel or transportation in aid of racketeering enterprises, in violation of

18 U.S.C. § 1952(a)(3), and one count of unlawful entry by a removed alien, in

violation of 18 U.S.C. § 1326(a). Pursuant to the plea agreement, Mr. Barbosa

waived his right to “[a]ppeal or collaterally challenge his guilty plea and any
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other aspect of his conviction, . . . [and to] [a]ppeal, collaterally challenge, or

move to modify . . . his sentence as imposed by the Court and the manner in

which the sentence is determined, provided the sentence is within or below the

advisory guideline range determined by the Court to apply to this case.” Mot. to

Enforce, Ex. 2, at 5. He was sentenced to 215 months’ imprisonment, which was

within the applicable advisory guideline range for the offenses of 210 to 262

months.

Mr. Barbosa filed a notice of appeal challenging his sentence. The

government has filed a motion to enforce the appeal waiver in its plea agreement

with Mr. Barbosa. In response, Mr. Barbosa’s attorney filed an Anders brief

stating her belief that there are no meritorious grounds upon which Mr. Barbosa

can appeal his sentence or urge denial of the government’s motion to enforce the

appeal waiver, and she requested permission to withdraw as counsel. See Anders

v. California, 386 U.S. 738, 744 (1967) (authorizing counsel to request

permission to withdraw where counsel conscientiously examines a case and

determines that an appeal would be wholly frivolous). This court gave

Mr. Barbosa an opportunity to file a pro se response to the motion to enforce, see

id., and granted him an extension of time to file his response to the motion. To

date, Mr. Barbosa has not filed a response to the motion to enforce. 

Under Anders, we have conducted an independent review and examination

of the motion to enforce. See id. This court will enforce a criminal defendant’s
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waiver of his right to appeal so long as the following three elements are satisfied: 

(1) “the disputed appeal falls within the scope of the waiver of appellate rights,”

(2) the defendant’s waiver of his appellate rights was knowing and voluntary, and

(3) enforcing the waiver will not result in a miscarriage of justice. United States

v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). We have

reviewed the plea agreement, the transcripts of the plea and sentencing hearings,

and the response from Mr. Barbosa’s counsel, and we conclude that the Hahn

factors have been satisfied.

Accordingly, we GRANT the government’s motion to enforce the appeal

waiver in the plea agreement, GRANT counsel’s motion to withdraw, and

DISMISS the appeal. The mandate shall issue forthwith.

Entered for the Court

PER CURIAM