United States v. Pacheco

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 3, 2023
• Docket: 22-1298
• Status: Unpublished

Opinion

Appellate Case: 22-1298 Document: 010110807922 Date Filed: 02/03/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 3, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-1298 (D.C. No. 1:21-CR-00231-PAB-5) EMIR ITZAYAN QUIROA PACHECO, (D. Colo.) a/k/a Rayito,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, McHUGH, and MORITZ, Circuit Judges. _________________________________

Emir Itzayan Quiroa Pacheco pleaded guilty to distribution and possession

with intent to distribute 50 grams and more of methamphetamine, and he received a

94.5-month prison sentence. He has appealed from that sentence despite the appeal

waiver in his plea agreement. The government moves to enforce that waiver under

United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc). Pacheco has

filed a response through counsel, and he now chooses not to oppose the motion.

When deciding a motion to enforce an appeal waiver, we normally ask:

“(1) whether the disputed appeal falls within the scope of the waiver of appellate

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-1298 Document: 010110807922 Date Filed: 02/03/2023 Page: 2

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.”

Id. at 1325. But we need not address a Hahn factor the defendant does not dispute.

See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005). Given Pacheco’s

non-opposition, he does not address the Hahn factors, so we do not address them

either. We therefore grant the government’s motion and dismiss this appeal.

Entered for the Court Per Curiam