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 This order and judgment is not binding precedent, except under the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

F I LED

United States Court of Appeals

Tenth Circuit

October 3, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAFAEL LOERA GAMBOA,

also known as Crook,

Defendant-Appellant.

No. 06-6194

(D.C. No. 04-CR-0179-R)

(W.D. Okla.)

ORDER AND JUDGMENT

*

Before KELLY, LUCERO, and HARTZ, Circuit Judges.

The government has filed a motion to enforce the plea agreement with

defendant Rafael Loera Gamboa. In the agreement, Mr. Gamboa waived his right

to appeal his conviction and sentence on the charge of conspiring to distribute

controlled substances. Mr. Gamboa’s attorney does not oppose the motion to

enforce; he has moved to withdraw as counsel of record. Mr. Gamboa objects to
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his attorney’s position. He has filed a pro se response to the government’s

motion to enforce, which we construe liberally. See Haines v. Kerner, 404 U.S.

519, 520-21 (1972). 

Mr. Gamboa contends that he was coerced into entering a guilty plea by

various prosecutorial decisions, including placing him in the same holding cell as

a codefendant and others involved in the drug conspiracy. Mr. Gamboa claims he

was stabbed as a consequence. He also maintains that his attorney and the federal

district court judge conspired to coerce him to plead guilty. In addition, he

apparently asserts that he was not given adequate consideration for his

cooperation in the investigation of the drug conspiracy and other criminal cases.

This court will enforce a criminal defendant’s 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).

Mr. Gamboa opposes the motion to enforce based only on the second and

third Hahn factors. Therefore, we do not address the first factor. See United
Nevertheless, it is clear that this appeal falls within the scope of the waiver 1

of appellate rights.

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States v. Porter, 405 F.3d 1136, 1143 (10th Cir.) (declining to address Hahn

factor not contested by defendant), cert. denied, 126 S. Ct. 550 (2005).1

Knowing and Voluntary Waiver

Mr. Gamboa asserts that his consent to the plea agreement and waiver of

appellate rights was not knowing and voluntary. To evaluate this assertion,

we consider “whether the language of the plea agreement states that [he] entered

the agreement knowingly and voluntarily” and whether there is “an adequate

Federal Rule of Civil Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. It is

Mr. Gamboa’s burden to demonstrate record evidence showing that he did not

understand the waiver. Id. at 1329.

Mr. Gamboa has failed to meet his burden. The plea agreement clearly

described the charge to which he pled guilty, the factual basis for the charge,

and the maximum penalty. In addition, the agreement stated that Mr. Gamboa

“knowingly and voluntarily waive[d] his right to . . . [a]ppeal or collaterally

challenge his guilty plea and any other aspect of his conviction.” Mot. to

Enforce, Attach. 2, at 7. 

Moreover, at the plea colloquy, Mr. Gamboa stated that his guilty plea was

“made voluntarily and completely of [his] own free choice.” Id., Attach. 3, at 6. 

In addition, he stated that he understood that he gave up his right to plead not
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guilty, that he was satisfied with the services of his attorney, that his attorney

gave him appropriate advice with regard to his guilty plea, and that he gave up his

right to appeal. Id. at 13-15. He also described his participation in the drug

conspiracy on which his guilty plea was based, thus providing an adequate factual

basis for the plea. See id. at 16-19. Finally, he declined the district court’s

invitation to ask further questions or address any concerns. Id. at 19. 

Mr. Gamboa has presented no evidence to demonstrate that he did not

understand the waiver. His conclusory claims that his attorney and the district

judge colluded to coerce him into pleading guilty are belied by his statement that

he was satisfied with his attorney’s services and by the free and open exchange

between Mr. Gamboa and the judge. See id. passim. Based on this record we

conclude that Mr. Gamboa knowingly and voluntarily waived his right to appeal

his guilty plea. 

Miscarriage of Justice

Construing Mr. Gamboa’s pro se pleading liberally, we also consider

whether enforcing the waiver will result in a miscarriage of justice. 

Miscarriage of justice results where: 1) the

district court relied on an impermissible factor such as

race; 2) ineffective assistance of counsel in connection

with the negotiation of the waiver renders the waiver

invalid; 3) the sentence exceeds the statutory maximum;

or 4) the waiver is otherwise unlawful. To satisfy the

last factor, the error must seriously affect the fairness,

integrity or public reputation of judicial proceedings.
We do not address Mr. Gamboa’s bald assertions that the record was 2

tampered with to his detriment. Even so, he has not shown how any alleged

alteration affected his plea agreement.

-5-

United States v. Maldonado, 410 F.3d 1231, 1233 (10th Cir.) (per curiam)

(quotations, alterations, and citation omitted), cert. denied, 126 S. Ct. 577 (2005). 

Mr. Gamboa contends that he gave valuable information, at great risk to

himself and his family, to a California police officer and other authorities. 

He claims that in exchange for that information, the charges were to have been

dismissed. He further claims that he was required to file a pro se motion to

dismiss the indictment because his attorney refused his instruction to do so.2

We construe these arguments as a claim that the waiver is unlawful.

The events of which Mr. Gamboa complains occurred prior to his guilty

plea. By his knowing and voluntary guilty plea, Mr. Gamboa waived the claims

based on those events because they do not challenge the district court’s

jurisdiction. See United States v. Salazar, 323 F.3d 852, 856 (10th Cir. 2003)

(“[I]t is well established that a voluntary and unconditional guilty plea waives all

non-jurisdictional defenses.”). Accordingly, we conclude that Mr. Gamboa has

not met his burden to persuade this court that the waiver seriously affected the

fairness, integrity or public reputation of the judicial proceedings. See

Maldonado, 410 F.3d at 1233 (holding defendant bears burden of persuasion

that enforcement of waiver is unlawful). 
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Conclusion

We GRANT Attorney Shannonhouse’s motion to withdraw as counsel for

Mr. Gamboa and the government’s motion to enforce the plea agreement. Appeal

DISMISSED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

PER CURIAM