United States of America v. Cesar Gutierrez

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CESAR GUTIERREZ,
Defendant - Appellant.
No. 21-4056
(D.C. No. 2:17-CR-00335-TS-DBP-3)
(D. Utah)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, KELLY, and CARSON, Circuit Judges.
_________________________________
Cesar Gutierrez pleaded guilty to conspiracy to distribute methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to 164 months’
imprisonment. Although his plea agreement contained a waiver of his appellate
rights, he filed a notice of appeal. The government has moved to enforce the appeal
waiver in the plea agreement pursuant to United States v. Hahn, 359 F.3d 1315
(10th Cir. 2004) (en banc) (per curiam).
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
* This order and judgment is not binding precedent, except under the doctrines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
October 29, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-4056 Document: 010110597459 Date Filed: 10/29/2021 Page: 1

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voluntarily waived his appellate rights; and (3) whether enforcing the waiver would
result in a miscarriage of justice.” Id. at 1325.
Counsel for Mr. Gutierrez filed a response to the government’s motion
“acknowledg[ing] that his appeal waiver is enforceable on the current record under
the standard set out in . . . Hahn,” Resp. at 1, and requesting permission to withdraw.
Because counsel’s response also stated that Mr. Gutierrez “disagrees with counsel’s
assessment of the case and would request that this Court give him an opportunity to
respond to the motion to enforce pro se,” id. at 4, we invited Mr. Gutierrez to respond
to the government’s motion. The deadline for his response has passed, and we have
not received a response from Mr. Gutierrez.
Based on counsel’s concession and our independent review of the record, we
grant the government’s motion to enforce the appeal waiver, grant the motion to
withdraw, and dismiss the appeal.
Entered for the Court
Per Curiam
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