UNITED STATES CO URT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. BEATRIZ ADRIANA CARDENAS-URIARTE, Defendant-Appellant. No. 12-2046 (D.C. No. 1:10-CR-01926-BB-1) (D. N.M.)

ORDER AND JUDGMENT *

Before O’BRIEN , TYMKOVICH , and GORSUCH , Circuit Judges.

Beatriz Adriana Cardenas-Uriarte plead ed guilty to conspiracy and multiple counts of distributing more th an fifty grams of methamphe tamine. 21 U.S.C. §§ 846, 841(a)(1), and 18 U.S.C. § 2. She was sentenced to 144 months in prison, which was below her advisory guideline range. Althoug h she waived her appellate rights as part of her plea agreement, Ms. Cardenas-U riarte filed an appeal challenging her

* This panel has determined that oral ar gument 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It ma y 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 

### June 14, 2012

Elisabeth A. Shumaker Clerk of Court- 2 - sentence. The government has since moved to enforce the appeal waiver pursuant to

United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Ms. Cardenas-Uriarte responded that enforc ing her appeal waiver would result in a miscarriage of justice becau se her sentence was wrongfu lly enhanced pursuant to U.S.S.G. § 2D1.1(b)(1). We disagree a nd accordingly grant the government’s motion to enforce the appeal waiv er and dismiss the appeal.

Under Hahn , we consider “(1) whether the di sputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived [her] appe llate rights; and (3) whether enforcing the waiver would

result in a miscarri age of justice.” Id. at 1325. The miscarriage-of-justice prong requires the defendant to show (a) “the district court relied on an impermissible factor, such as race”; (b) “ineffective assistance of couns el in connection with the negotiation of the waiver rendered the waiv er invalid”; (c) her “sentence exceeds the statutory maximum”; or (d) her appeal “wai ver is otherwise unlawful” and the error “seriously affect[s] th e fairness, integrity or public reput ation of judicial proceedings.

Id. at 1327 (quotation omitted). The only basis upon which Ms. Cardenas-Uri arte contests her appeal waiver is the miscarriage-of-justice prong. See United States v. Porter , 405 F.3d 1136, 1143 (10th Cir. 2005) (declining to consider uncontested factor). She argues that enforcing her appeal waiver would resu lt in a miscarriage of just ice because the waiver is otherwise unlawful. In particular, she re fers us to U.S.S.G. § 2D1.1(b)(1), under- 3 - which her sentence was enhanced for posse ssion of a dangerous weapon, and asserts the district court wrongly applied the enha ncement because the di sputed firearm was likely kept for protection by a government witness. She argues that this sentencing error resulted from the governme nt’s failure to show that she possessed the firearm as required by § 2D1.1(b)(1). The problem with this argument, howev er, is that it is foreclosed by our precedent. Indeed, we have explained th at in considering whether an appeal waiver is “otherwise unl awful,” we look only “to whether the waiver [itself] is otherwise unlaw ful,” not to whether there was a sentencing error. United

States v. Smith , 500 F.3d 1206, 1213 (10th Cir. 2007) (quotation omitted). The rationale is simple: the alleged error w ould invalidate the app eal waiver “based on the very sort of claim it was intended to waive.” Id. Because Ms. Cardenas-Uriarte advances no argument impeaching the waiver itself, she fails to show a miscarriage of justice. Accordingly, we GRANT the governme nt’s motion to enforce the appeal waiver and DISMISS the appeal.

Entered for the Court Per Curiam