UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ARNULFO PRADO-CERVANTEZ, 

 Defendant - Appellant. 

No. 14-3168 

(D.C. No. 5:11-CR-40044-JAR-11) 

(D. Kan.)

 

ORDER AND JUDGMENT*

 

Before GORSUCH, HOLMES, and MATHESON, Circuit Judges. 

 

 After accepting a plea agreement that included a waiver of his right to appeal, 

Arnulfo Prado-Cervantez pleaded guilty to one count of unlawful use of a 

communication to facilitate the distribution of methamphetamine. The district court 

sentenced him to 48 months’ imprisonment. Despite the waiver, 

Mr. Prado-Cervantez has filed a notice of appeal in which he alleges a speedy trial 

violation and that his waiver was not knowing and voluntary. The government has 

 

* 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is not binding precedent, except under the doctrines of law of the case, res judicata, 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 

October 20, 2014

Elisabeth A. Shumaker 

Clerk of Court
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moved to enforce the appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328 

(10th Cir. 2004) (en banc) (per curiam). 

 In evaluating a motion to enforce a waiver under Hahn, we consider: 

“(1) whether the disputed appeal falls within the scope of the waiver of appellate 

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. Prado-Cervantez concedes that the disputed appeal falls within the 

scope of the waiver. As to the second factor, he asserts “that he did not knowingly or 

voluntarily agree to the Appeal Waiver. That [he] does not remember reading in 

written form the Appeal Waiver before the time of Plea, nor does [he] recall that he 

agreed to the Appeal Waiver in open Court.” Resp. at 4. As a consequence of the 

alleged failure to knowingly and voluntarily waive his appellate rights, he maintains 

that enforcement of the waiver would result in a miscarriage of justice. 

 The record does not support Mr. Prado-Cervantez’s arguments. First, he 

admitted that he reviewed the Plea Agreement with his lawyer prior to the 

change-of-plea hearing. Plea Hr’g Tr. at 8. Further, the government explained in 

open court the key terms of the Plea Agreement, which included “a waiver of his 

appellate and collateral attack rights,” id. at 16, and Mr. Prado-Cervantez 

acknowledged that one of the key terms was a waiver of his appellate rights, id. at 17. 

Last, the Plea Agreement that bears Mr. Prado-Cervantez’s signature states that he 
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has read and understood the Agreement and that his plea is knowing and voluntary. 

Plea Agt. at ¶¶ 15, 16. 

 The motion to enforce is granted, and this appeal is dismissed. 

 Entered for the Court 

 Per Curiam