UNITED STATES of America, Plaintiff-Appellee, v. Francisco NUNEZ, Defendant-Appellant, 388 F. App'x 776

ORDER AND JUDGMENT PER CURIAM. This matter is before the court on the government’s motion to enforce the appeal waiver contained in defendant Francisco Nunez’s plea agreement. The defendant pleaded guilty to conspiracy to possess with intent to distribute and dispense 500 grams or more of a mixture containing a detectable amount of methamphetamine.

Pursuant to the plea agreement, the defendant waived his right to appeal his conviction or his sentence, provided his sentence was within the statutory maximum authorized by law and within the advisory sentencing guideline range determined by the district court to apply. The defendant’s sentence was below the statutory maximum and within the advisory guideline range. Nevertheless, the defendant filed a notice of appeal. The government filed a motion to enforce the plea agreement pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc) (per curiam).

In response, the defendant concedes through counsel that there are no non-frivolous arguments that can be presented in response to the motion to enforce. We have reviewed the motion, the record and the defendant’s response, and we agree that the defendant’s proposed appeal falls within the scope of the appeal waiver, that he knowingly and voluntarily waived his appellate rights, and that enforcing the waiver would not result in a miscarriage of justice. See id., 359 F.3d at 1325 (describing the factors this court considers when determining whether to enforce a waiver of appellate rights).

Accordingly, we GRANT the motion to enforce the appeal waiver and DISMISS the appeal. Counsel for appellant is reminded that the fee remains due in this appeal. 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.