United States v. Michel-Galaviz

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 11, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 18-4138 (D.C. No. 2:16-CR-00326-JNP-EJF-1) MANUEL ALBERTO MICHEL- (D. Utah) GALAVIZ, Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before HOLMES, KELLY, and O’BRIEN, Circuit Judges. _________________________________ Manuel Alberto Michel-Galaviz pleaded guilty to one count of conspiracy to distribute methamphetamine and one count of conspiracy to distribute heroin. The parties entered into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement in which they stipulated that a reasonable sentence would be no more than 84 months’ imprisonment. The district court accepted the plea agreement and imposed a sentence of 66 months.1 Despite the broad appeal waiver in his plea agreement, Mr. Michel-Galaviz filed a notice of appeal. The government has moved to enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).

Counsel filed a response to the motion to enforce citing Anders v. California, 386 U.S. 738 (1967), Resp. at 1, and stating his belief that “there are no non-frivolous issues to be raised on behalf of Mr. Michel-Galaviz for appellate purposes,” id. at 4. Counsel also filed a motion to withdraw. We gave Mr. Michel-Galaviz an opportunity to respond to the motion to enforce, but he has not done so.

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.” 359 F.3d at 1325. We have reviewed the proceedings in accordance with our obligation under Anders. See 386 U.S. at 744.2 We conclude the Hahn factors have been satisfied, and there is no non-frivolous argument to make against enforcing the appellate waiver. Accordingly, we grant the motion to enforce and dismiss this appeal. We also grant counsel’s motion to withdraw.

Entered for the Court Per Curiam