UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JESUS GARCIA-SALAS, 

a/k/a Don Chuy, 

 Defendant - Appellant. 

No. 14-1357 

(D.C. No. 1:13-CR-00161-REB-9) 

(D. Colo.)

 

ORDER AND JUDGMENT*

 

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

 

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

Jesus Garcia-Salas pleaded guilty to one count of possession of a controlled 

substance with intent to distribute. He was sentenced to 61 months’ imprisonment – 

a below-Guidelines sentence. Notwithstanding the appeal waiver, Mr. Garcia-Salas 

has filed a notice of appeal that identifies two issues: “Appellant believes that the 

sentence imposed violated the terms of the plea agreement as he understood them to 

 

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is not binding precedent, except under the doctrines of law of the case, res judicata, 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

February 5, 2015

Elisabeth A. Shumaker 

Clerk of Court

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be when he agreed to the same; [and] Appellant wants to appeal the sentence that was 

imposed on him.” Dktg. Stmt. at 5. The government has moved to enforce the 

waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) 

(per curiam). We grant the motion and dismiss the appeal. 

 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. 

 The written plea agreement executed by Mr. Garcia-Salas precludes an appeal 

unless it meets one of the following three criteria: (1) the sentence 

imposed is above the maximum penalty provided in the statute of 

conviction, (2) the Court, after determining the otherwise applicable 

sentencing guideline range, either departs or varies upwardly, or (3) the 

Court determines that the offense level is greater than 36 (prior to any 

reduction for safety valve or acceptance of responsibility) and imposes a 

sentence based upon that offense level determination. 

Plea Agmt. at 4. And at the change of plea hearing Mr. Garcia-Salas acknowledged 

he was waiving the right of appeal subject only to the exceptions stated in the plea 

agreement. See Plea Hr’g Tr. at 21-24. 

 Mr. Garcia-Salas’s counsel has filed a response to the government’s motion to 

enforce, in which he states that the district court’s “findings, conclusions and 

judgment did not trigger any of the exceptions to the appeal waiver.” Resp. at 2. In 

other words, he concedes that the appeal falls within the scope of the waiver. As to 

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the other Hahn factors (whether the waiver was knowing and voluntary or would 

result in a miscarriage of justice) he makes no argument. As such, the motion to 

enforce is granted and this matter is dismissed. 

 Entered for the Court 

 Per Curiam 

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