UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

ALONSO ANILES-MARQUEZ, 

 Defendant-Appellant. 

No. 12-2186 

(D.C. No. 1:11-CR-01691-WJ-1) 

(D. N.M.)

 

ORDER AND JUDGMENT*

 

Before BRISCOE, Chief Judge, LUCERO and GORSUCH, Circuit Judges. 

 

 This matter is before the court on the government’s motion to enforce the 

appeal waiver contained in defendant Alonso Aniles-Marquez’s plea agreement. We 

grant the government’s motion and dismiss the appeal. 

 Mr. Aniles-Marquez pled guilty pursuant to a plea agreement to one count of 

possession with intent to distribute more than five grams of methamphetamine, in 

 

* This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 29, 2013

Elisabeth A. Shumaker 

Clerk of Court
- 2 - 

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and one count of possession with intent 

to distribute a mixture and substance containing a detectable amount of 

methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). 

Mr. Aniles-Marquez stipulated in his plea agreement that “[a]t least 35 grams but less 

than 50 grams of methamphetamine (actual) are attributable to [him].” Mot. to 

Enforce, Attach. # 1 (Plea Agreement), at 5. He also acknowledged in the plea 

agreement that the maximum term of imprisonment the court could impose was 

“a period of not less than 5 years nor more than 40 years.” Id. at 2. The district court 

accepted his guilty plea and, after calculating his sentencing guideline range to be 

87 to 108 months, sentenced him to 92 months’ incarceration on each count, to run 

concurrently. 

As part of his plea agreement, Mr. Aniles-Marquez “knowingly waive[d] the 

right to appeal [his] conviction(s) and any sentence, including any fine, at or under 

the maximum statutory penalty authorized by law.” Id. at 10. He nonetheless filed 

an appeal, which prompted the government to file the current motion to dismiss in 

accordance with United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) 

(en banc) (per curiam). Mr. Aniles-Marquez’s court-appointed attorney filed a 

response to the government’s motion stating that “after a conscientious examination 

of the record,” he concluded “that only frivolous grounds exist by which to oppose 

the government’s motion,” and he asked to withdraw from representation. Resp. to 

Mot. to Enforce at 1; see also Anders v. California, 386 U.S. 738 (1967). In light of 
- 3 - 

counsel’s response, we invited Mr. Aniles-Marquez to file a pro se response, which 

he did. 

 Mr. Aniles-Marquez lists eleven errors in his response that he contends 

warrant allowing him to proceed with his appeal. Most of them involve alleged 

sentencing errors, one involves an alleged error in the government’s statement of 

facts supporting his guilty plea, and another involves his trial counsel’s alleged 

ineffective assistance in not advising him of the immigration consequences of his 

plea. 

 We will enforce an appeal waiver as long as three elements are met: (1) “the 

disputed appeal falls within the scope of the appellate waiver”; (2) “the defendant 

knowingly and voluntarily waived his appellate rights”; and (3) “enforcing the waiver 

will [not] result in a miscarriage of justice.” Hahn, 359 F.3d at 1325, 1327. The first 

factor is satisfied because none of the issues Mr. Aniles-Marquez raises falls outside 

the scope of his appeal waiver. 

The second factor is also satisfied. Mr. Aniles-Marquez does not argue that 

his waiver of appellate rights was not knowing and voluntary, an element on which 

he bears the burden of proof, see United States v. Salas-Garcia, 698 F.3d 1242, 1254 

(10th Cir. 2012). Further, our independent review of the plea agreement and the 

Rule 11 colloquy demonstrates that his waiver was knowing and voluntary. See id.

(“[T]he court examines whether the language of the plea agreement states that the 
- 4 - 

defendant entered the agreement knowingly and voluntarily, and whether there was 

an adequate Federal Rule of Criminal Procedure 11 colloquy.”). 

Although Mr. Aniles-Marquez alleges that he was not adequately advised of 

the immigration consequences of his guilty plea, the plea agreement itself clearly 

explains those consequences: 

[P]leading guilty may have consequences with respect to Defendant’s 

immigration status if Defendant is not a citizen of the United States. 

Under federal law, a broad range of crimes are removable offenses, 

including the offenses to which Defendant is pleading guilty. Indeed, 

because Defendant is pleading guilty to violations of 21 U.S.C. 

§§ [841](a)(1), (b)(1)(B) and (b)(1)(C), removal is presumptively 

mandatory. . . . Defendant nevertheless affirms that Defendant wants to 

plead guilty regardless of any immigration consequences that 

Defendant’s plea may entail, even if the consequence is Defendant’s 

automatic removal from the United States. 

Plea Agreement at 9-10. And the court discussed the immigration consequences of 

his plea with him as part of the Rule 11 colloquy: 

THE COURT: And as part of your agreement, you’re agreeing to 

be deported following your service of incarceration. You’re giving up 

any hearing before you are deported. Do you understand that? 

 THE DEFENDANT: Yes, ma’am. 

 THE COURT: And with that deportation and this criminal 

conviction, it will be impossible for you to enter the United States 

lawfully in the future. Do you understand that? 

 THE DEFENDANT: Yes, ma’am. 

Mot. to Enforce, Attach. 2 (Plea Hrg. Tr.), at 9. Accordingly, we see no basis for 

concluding that Mr. Aniles-Marquez did not waive his appellate rights knowingly and 

voluntarily. 
- 5 - 

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

unless it finds that the enforcement of the waiver would constitute a miscarriage of 

justice.” Salas-Garcia, 698 F.3d at 1255 (internal quotation marks omitted). 

Enforcement of the waiver will constitute a miscarriage of justice only if one of the 

following circumstances is present: (1) “the district court relied on an impermissible 

factor such as race”; (2) the “ineffective assistance of counsel in connection with the 

negotiation of the waiver renders the waiver invalid”; (3) “the sentence exceeds the 

statutory minimum”; or (4) “the waiver is otherwise unlawful.” Id. (internal 

quotation marks omitted). None of these circumstances are present here. 

Mr. Aniles-Marquez does contend that his trial counsel was ineffective in advising 

him of the immigration consequences of his guilty plea, but even if this claim 

somehow relates to the negotiation of the appeal waiver, Mr. Aniles-Marquez must 

wait to raise it in a separate proceeding under 28 U.S.C. § 2255. See United States v. 

Novosel, 481 F.3d 1288, 1295 (10th Cir. 2007) (per curiam).

 Accordingly, we grant the government’s motion to enforce the appeal waiver 

and dismiss the appeal. Defense counsel’s request to withdraw is denied without 

prejudice to renewal in a proper motion that comports with 10th Cir. R. 46.4. 

Mr. Aniles-Marquez’s request for appointment of counsel is denied as moot. 

 Entered for the Court 

 Per Curiam