* This panel has determined unanimously 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 This order and judgment is not binding precedent, except under the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

January 12, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff!Appellee,

v.

LEONEL OROZCO!CONTRERAS,

Defendant!Appellant.

No. 09-2222

(D.C. No. 2:09-CR-01570-JEC-1)

(D. N.M.)

ORDER AND JUDGMENT*

Before MURPHY, EBEL, and HARTZ, Circuit Judges.

Defendant Leonel Orozco-Contreras entered a guilty plea to one count of

being an alien who has re-entered the United States illegally after having been

deported. His plea agreement included a waiver of his right to appeal his

sentence. Although defendant’s original guideline sentencing range would have

been 37 to 46 months, because of concessions contained in the plea agreement,

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the district court determined that the sentencing guideline range was 27 to 33

months. The court then sentenced defendant to 27 months’ imprisonment, at the

low end of the range. Despite his appeal waiver, defendant has now filed an

appeal seeking to challenge his sentence. The government has moved to enforce

the appeal waiver in defendant’s plea agreement pursuant to our decision in

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

We grant the motion and dismiss the appeal.

In determining whether an appeal should be dismissed based on an appeal

waiver, 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. Defendant does not argue that his plea was

not knowing and voluntary nor does he argue that enforcing the appeal waiver

would result in a miscarriage of justice. Instead, he argues that the district court

abused its discretion in sentencing him to a term of imprisonment of 27 months. 

The only relevant Hahn factor therefore is whether defendant’s appeal falls within

the scope of his appeal waiver. 

Defendant’s plea agreement states that he “knowingly waives the right to

appeal any sentence within the applicable sentencing guideline range.” Plea

Agreement at 5. Because the district court imposed a sentence within the

applicable sentencing guideline range, defendant’s appeal falls within the scope

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of his appellate waiver. Accordingly, defendant has not established any of the

applicable exceptions to the enforcement of his appeal waiver. We therefore

GRANT the government’s motion to enforce the appeal waiver contained in

defendant’s plea agreement and DISMISS the appeal. 

ENTERED FOR THE COURT

PER CURIAM

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