UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JUAN ANTONIO CUBILLAS, 

 Defendant - Appellant. 

No. 17-4010 

(D.C. No. 1:15-CR-00054-JNP-1) 

(D. Utah) 

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ORDER AND JUDGMENT*

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Before BRISCOE, O’BRIEN, and PHILLIPS, Circuit Judges. 

_________________________________ 

Juan Antonio Cubillas pled guilty to one count of reentry of a previously 

removed alien, in violation of 8 U.S.C. § 1326. Mr. Cubillas’ plea agreement 

contained a broad waiver of his rights to appeal or collaterally attack his sentence. 

Despite this waiver, Mr. Cubillas seeks to appeal from the district court’s denial of a 

motion he filed related to a sentencing determination. The government has filed a 

motion seeking to enforce the waiver in Mr. Cubillas’ plea agreement under United 

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

government’s motion and dismiss the appeal. 

 *

 This order and judgment is not binding precedent, except under the doctrines 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 3, 2017

Elisabeth A. Shumaker 

Clerk of Court
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The district court sentenced Mr. Cubillas to 40 months in prison. This 

sentence was within the advisory guidelines range of 37 to 46 months. Mr. Cubillas’ 

federal sentence made no reference to any state sentence and, as a result, did not 

specify whether his federal sentence was to run concurrent with or consecutive to any 

state sentence. 

Over a year after sentencing, Mr. Cubillas filed a “Motion for Clarification 

and/or Request for Recommendation to the Bureau of Prisons.” R. at 32. In his 

motion, Mr. Cubillas explained that he had been unsuccessful in having the Bureau of 

Prisons (BOP) credit the time he spent in state custody on a drug charge towards his 

federal sentence. He argued that the BOP’s failure to award him “prior jail 

credits . . . result[ed] in the lengthening of [his] sentence beyond the terms of 

imprisonment imposed by the federal court.” R. at 34. He therefore requested that 

the district court issue an order clarifying that his federal and state sentences should 

run concurrently. Alternatively, he requested that the district court issue a 

recommendation to the BOP “supporting a nunc pro tunc designation so that he may 

receive credit against his federal sentence for the time spent in the state of Utah’s 

custody.” Id. at 35. 

The district court denied the motion for clarification, explaining that “there 

was no ambiguity in the sentence requiring clarification” because “[t]he issue was 

never raised and the court never addressed it.” Id. at 46. The court also denied 

Mr. Cubillas’ alternative request that it recommend that the two sentences run 

concurrently. Mr. Cubillas seeks to appeal the district court’s denial of his motion, 
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but the government asserts that the appeal is barred by the terms of the waiver in the 

plea agreement. 

Under Hahn, 359 F.3d at 1325, we consider the following three factors in 

determining whether to enforce a waiver in a plea agreement: (1) does the disputed 

appeal fall within the scope of the waiver; (2) was the waiver knowing and voluntary; 

and (3) would enforcing the waiver result in a miscarriage of justice. Mr. Cubillas’ 

sole argument is that his appeal is outside of the scope of the waiver in his plea 

agreement. Because he does not contest that his waiver was knowing and voluntary 

and he does not assert that enforcing the waiver would result in a miscarriage of 

justice, we need not address those factors. See United States v. Porter, 405 F.3d 

1136, 1143 (10th Cir. 2005). 

Under the terms of Mr. Cubillas’ plea agreement, he waived his right “to 

appeal any sentence imposed upon me, and the manner in which the sentence is 

determined,” except for certain situations not applicable here. Mot. to Enforce, 

Attach. A at 3. He also waived his “right to challenge [his] sentence, and the manner 

in which the sentence is determined, in any collateral review motion, writ or other 

procedure . . . .” Id. at 4. He further understood and agreed “that the word 

‘sentence’ . . . is being used broadly, and applies to all aspects of the Court’s 

sentencing authority . . . .” Id. 

Mr. Cubillas argues that his claim is beyond the scope of the plea agreement 

because he is not challenging his sentence. But he is in fact challenging a specific 

component of his sentence by seeking to have the district court “clarify” or amend his 
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sentence to direct that his federal sentence should run concurrent with his previously 

imposed state sentence. This challenge falls within the sentencing authority of the 

district court because it had the discretion to order his federal and state sentences to 

run concurrently. See United States v. Williams, 46 F.3d 57, 58 (10th Cir. 1995) 

(“Whether to impose a consecutive or concurrent sentence is a matter within the 

discretion of the district court.”); see also 18 U.S.C. § 3584(a) (“Multiple terms of 

imprisonment imposed at different times run consecutively unless the court orders 

that the terms are to run concurrently.”). And, in Hahn, 359 F.3d at 1328, we held 

that a challenge regarding the district court’s failure to exercise its discretion to 

impose a sentence concurrent to another federal sentence fell within the scope of the 

general waiver related to sentencing matters. 

For the foregoing reasons, we conclude that Mr. Cubillas’ appeal falls within 

the scope of the waiver in his plea agreement. Accordingly, we grant the 

government’s motion to enforce and dismiss this appeal. 

Entered for the Court 

Per Curiam