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)

________________ _________________ ORDER AND JUDGMENT *

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

________________ _________________ Juan Antonio Cubillas pled guilty to one count of reentry of a previously removed alien, in violati on of 8 U.S.C. § 1326. Mr . Cubillas’ plea agreement contained a broad waiver of hi s rights to appeal or collate rally attack his sentence. Despite this waiver, Mr. Cubill as seeks to appeal from the district court’ s denial of a motion he filed related to a sentencing de termination. 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 ba nc) (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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt 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 Court2 The district court sentenced Mr. Cub illas to 40 months in prison. This sentence was within the adviso ry guidelines range of 37 to 46 months. Mr. Cubillas’ federal sentence made no refe rence to any state sentence and, as a result, did not specify whether his federal se ntence was to run concurrent with or consecutive to any

state sentence. Over a year after sentencing, Mr. Cub illas filed a “Motion for Clarification and/or Request for Recommendation to the Bu reau 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 lengthe ning 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 fede ral and state sentences should run concurrently. Alternatively, he re quested that the dist rict court issue a recommendation to the BOP “supporting a nunc pro tunc designati on so that he may receive credit against his fede ral 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 cour t never addressed it.” Id . at 46. The court also denied Mr. Cubillas’ altern ative request that it recommend that the two sentences run concurrently. Mr. Cubillas seek s to appeal the district c ourt’s denial of his motion,3 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 wa iver knowing and voluntary; and (3) would enforcing the wa iver result in a miscarriage of justice. Mr. Cubillas’ sole argument is that his a ppeal 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 (10t h Cir. 2005). Under the terms of Mr. Cubillas’ plea agreement, he waived his right “to appeal any sentence imposed upon me, a nd the manner in which the sentence is determined,” except for certain situations not applicable here. Mot. to Enforce, Attach. A at 3. He also wa ived his “right to challenge [his] sentence, and the manner in which the sentence is dete rmined, in any collateral re view motion, writ or other procedure . . . .” Id . at 4. He further underst ood and agreed “that the word ‘sentence’ . . . is being us ed 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 his4 sentence to direct that his federal sentence should run concurrent with his previously imposed state sentence. This challenge fa lls within the senten cing authority of the district court because it had the discretion to order his fe deral 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 conc urrent 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 unles s the court orders that the terms are to run c oncurrently.”). And, in Hahn , 359 F.3d at 1328, we held that a challenge regarding the district cour t’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 th at Mr. Cubillas’ appeal 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