UNITED STATES CO URT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. AGUSTIN AGUIRRE-RAMIREZ, a/k/a Los Simbolos, a/k/a Alonso Valdivia, a/k/a Cisco, Defendant - Appellant. No. 16-1235 (D.C. No. 1:12-CR-00038-CMA-1) (D. Colo.)

ORDER AND JUDGMENT *

Before BRISCOE , EBEL , and LUCERO , Circuit Judges.

Agustin Aguirre-Ramirez pled guilty to one count of conspiracy to distribute and possess with intent to distribute five k ilograms or more of a mixture or substance containing a detectable amount of cocaine. He was sentenced to 216 months in prison. His plea agreement contained a waiver of his right to appeal from his

conviction or sentence. In spite of this waiver, Mr. A guirre-Ramirez filed a notice of

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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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

### November 15, 2016

Elisabeth A. Shumaker Clerk of Court- 2 - appeal seeking to challenge his sentence. The government has moved to enforce the appeal waiver pursuant to United States v. Hahn , 359 F.3d 1315 (10t h Cir. 2004) (per curiam). When reviewing a motion to enforce, we consider “(1) whether the disputed appeal falls within the scope of the waiver of appella te rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.” Id . at 1325. Mr. Aguirre-Ramirez does not contest that his waiver was know ing and voluntary and he does not argue that enforcing the waiver would result in a miscar riage of justice.

We therefore need not address those issues. See United States v. Porter , 405 F.3d 1136, 1143 (10th Cir. 2005). His sole argument is that his appeal is outside the scope

of the waiver. Mr. Aguirre-Ramirez waived the right to appeal “any matter in connection with [his] prosecution, convi ction or sentence” unless it met one of three conditions: (1) the sentence imposed is above th e maximum penalty provided in the statute of conviction; (2) the Cour t, after determining the otherwise applicable sentencing guideline range, ei ther departs or varies upwardly, or (3) the Court determines that th e offense level is greater than the adjusted offense level of 42 . . . a nd imposes a sentence based upon that offense level determination. Mot. to Enforce, Attach. 1 at 3-4. Here, the district court determined that the app licable sentencing guideline range for Mr. Aguirre-Ramirez was 292 to 365 months’ imprisonment. The court then decided to vary downward and senten ced him to a below-gu ideline sentence of- 3 - 216 months’ imprisonment. Th is sentence does not meet any of the three conditions for an exception to the app eal waiver: (1) it does not exceed the maximu m penalty of life in prison; (2) it is not an upward de parture or variance fro m the guideline range, but instead is a downward variance; and (3) the offense level determined by the district court was 39, which is below the offense level of 42 indicated in the third

condition. Mr. Aguirre-Ramirez argues, however, th at the second cond ition is implicated if the district court improperly calculated the guideline range. He asserts that the words “otherwise applicabl e” permits a challenge to th e calculation of the guideline range or renders this conditi on ambiguous. We disagree.

The second condition creates an ex ception to the waiver when, after determining the otherwise a pplicable sentencing guidelin e range, the district court departs or varies upwardly from that range. There is nothing in the second condition that indicates that a challenge to the di strict court’s calcul ation of the initial sentencing guideline range is outside of th e waiver. The “oth erwise applicable” language serves as a referen ce if the district court depa rts or varies upward from the range it has determined is appropriate. This language does nothi ng to alter the focus of this exception or to create any ambiguity . The focus of the exception is to permit an appeal if the district court departs or varies upward from whatever guideline range it has determined is appropriate.- 4 - Because the district court did not de part or vary upward from the guideline range it had determined was applicable, Mr . Aguirre-Ramirez’s a ppeal falls within the scope of the waiver in his plea ag reement. Accordingly, we grant the government’s motion to enfor ce and dismiss this appeal.

Entered for the Court Per Curiam