United States v. Perdomo-Cabrera

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HECTOR PERDOMO-CABRERA,

Defendant - Appellant.

No. 19-1374
(D.C. No. 1:18-CR-00192-RM-6)
(D. Colo.)
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ORDER AND JUDGMENT
*

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Before LUCERO, KELLY, and McHUGH, Circuit Judges.
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Hector Perdomo-Cabrera pleaded guilty to conspiracy to distribute or possess
with the intent to distribute 500 grams or more of a mixture or substance containing
methamphetamine. He was sentenced to serve 108 months in prison. 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).

*
This order and judgment is not binding precedent, except under the doctrines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

January 23, 2020

Christopher M. Wolpert
Clerk of Court
Appellate Case: 19-1374 Document: 010110293582 Date Filed: 01/23/2020 Page: 1

2

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.” Id. at 1325. The government asserts that all of the
Hahn conditions have been satisfied because: (1) Mr. Perdomo-Cabrera’s appeal is
within the scope of the appeal waiver; (2) he knowingly and voluntarily waived his
appellate rights; and (3) enforcing the waiver would not result in a miscarriage of
justice. In response to the government’s motion, Mr. Perdomo-Cabrera, through
counsel, concedes his appeal waiver is enforceable under the standard set forth in
Hahn.
Based on this concession and our independent review of the record, we grant
the government’s motion to enforce the appeal waiver and dismiss the appeal. This
dismissal does not affect Mr. Perdomo-Cabrera’s right to pursue post-conviction
relief on the grounds permitted in his plea agreement.

Entered for the Court
Per Curiam
Appellate Case: 19-1374 Document: 010110293582 Date Filed: 01/23/2020 Page: 2