United States v. Valadez-Perez, 10th Cir. (2006)
United States v. Valadez-Perez, 10th Cir. (2006)
United States v. Valadez-Perez, 10th Cir. (2006)
v.
FELIPE VALAD EZ-PEREZ,
Defendant-Appellant.
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 This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
and that defendants criminal history category will be determined by the United
States Probation Office and reflected in the presentence report prepared in this
case. Plea Agreement at 3 (dated and filed Nov. 1, 2005). Defendant agreed
that the sentence in this case shall be determined pursuant to the sentencing
guidelines, using the offense level agreed upon in this plea agreement, and
applying the criminal history category determined by the Court after review of the
presentence report. Id. Defendant then knowingly waive[d] the right to appeal
any sentence within the statutory range applicable to the statute(s) of conviction.
Id. at 5.
In sentencing defendant, the district court accepted the plea agreements
stipulated offense level of 19 and, after listening to the parties respective
arguments, it also accepted the criminal history category calculation set forth in
the presentence report, which was a category of IV . See Tr. of Sentencing Hrg. at
11. These two factors yielded a guideline sentencing range of 46 to 57 months.
The district court sentenced defendant to a term of 46 months incarceration,
followed by a three-year term of unsupervised release. The court declined to
impose a fine, but it did impose a special assessment of $100.00. The court found
the sentence to be reasonable under 18 U.S.C. 3742(A). As defendant
acknowledged in the plea agreement, the maximum sentence the court could have
imposed under the applicable statute was up to 20 years imprisonment, a
mandatory term of not more than three years supervised release, a fine not to
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the governments M otion, and noted his intent to submit a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and to seek leave to withdraw should
the appeal go forward. Response to Governments M otion for Enforcement of
Plea Agreement at 2. Subsequently, this court provided defendant with copies of
the governments motion and counsels response and gave him the opportunity to
argue why this appeal should be heard despite his appeal waiver. He did not
respond.
W e have carefully reviewed the plea agreement and the transcript of the
hearing at which defendant entered his guilty plea. W e conclude that the Hahn
factors have been satisfied.
Accordingly, we GRANT the governments motion to enforce the plea
agreement and DISM ISS the appeal. The mandate shall issue forthwith.
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