United States of America v. Victor Ordonez-Castillo

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR ORDONEZ-CASTILLO,
Defendant - Appellant.
No. 21-2084
(D.C. No. 2:21-CR-00505-DN-1)
(D. N.M.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES, and McHUGH, Circuit Judges.
_________________________________
Victor Ordonez-Castillo pleaded guilty to reentry of a removed alien, in
violation of 8 U.S.C. § 1326(a) and (b), pursuant to a “Fast Track” plea agreement
under United States Sentencing Guideline § 5K3.1, which provided for a two-level
departure from the otherwise applicable sentencing guideline range in exchange for a
timely guilty plea. He was sentenced to 16 months’ imprisonment. Although his
plea agreement contained a broad waiver of his appellate rights, he filed a notice of
appeal. The government has moved to enforce the appeal waiver in the plea
* This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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. 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 26, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-2084 Document: 010110595711 Date Filed: 10/26/2021 Page: 1

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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
voluntarily waived his appellate rights; and (3) whether enforcing the waiver would
result in a miscarriage of justice.” Id. at 1325.
In response to the government’s motion, Mr. Ordonez-Castillo, through
counsel, states that he “does not object to the granting of the government’s motion
and the dismissal of this appeal.” Resp. at 1. 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. Ordonez-Castillo’s right to pursue post-conviction relief on the grounds
permitted in his plea agreement.
Entered for the Court
Per Curiam
Appellate Case: 21-2084 Document: 010110595711 Date Filed: 10/26/2021 Page: 2

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