UNITED STATES COURT 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 pleaded guilty to conspiracy and multiple 

counts of distributing more than fifty grams of methamphetamine. 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. Although she waived her appellate rights as part 

of her plea agreement, Ms. Cardenas-Uriarte filed an appeal challenging her 

 

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is not binding precedent, except under the doctrines of law of the case, res judicata, 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

June 14, 2012

Elisabeth A. Shumaker 

Clerk of Court
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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 enforcing her appeal waiver would result in a 

miscarriage of justice because her sentence was wrongfully enhanced pursuant to 

U.S.S.G. § 2D1.1(b)(1). We disagree and accordingly grant the government’s motion 

to enforce the appeal waiver and dismiss the appeal. 

 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 [her] appellate rights; and (3) whether enforcing the waiver would 

result in a miscarriage 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 counsel in connection with the 

negotiation of the waiver rendered the waiver invalid”; (c) her “sentence exceeds the 

statutory maximum”; or (d) her appeal “waiver is otherwise unlawful” and the error 

“seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. 

Id. at 1327 (quotation omitted). 

 The only basis upon which Ms. Cardenas-Uriarte 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 result in a miscarriage of justice because the waiver is 

otherwise unlawful. In particular, she refers us to U.S.S.G. § 2D1.1(b)(1), under 
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which her sentence was enhanced for possession of a dangerous weapon, and asserts 

the district court wrongly applied the enhancement because the disputed firearm was 

likely kept for protection by a government witness. She argues that this sentencing 

error resulted from the government’s failure to show that she possessed the firearm as 

required by § 2D1.1(b)(1). The problem with this argument, however, is that it is 

foreclosed by our precedent. Indeed, we have explained that in considering whether 

an appeal waiver is “otherwise unlawful,” we look only “to whether the waiver

[itself] is otherwise unlawful,” 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 would invalidate the appeal 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 government’s motion to enforce the appeal 

waiver and DISMISS the appeal. 

 Entered for the Court 

 Per Curiam