United States v. Loera-Herrera

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JUAN SERGIO LOERA-HERRERA,

Defendant - Appellant.

No. 19-1402
(D.C. No. 1:19-CR-00258-PAB-1)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before BRISCOE, EID, and CARSON, Circuit Judges.
_________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in Juan Sergio Loera-Herrera’s plea agreement pursuant to United
States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).
Exercising jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the
appeal.
Loera-Herrera pleaded guilty to illegal reentry by a previously deported alien,
in violation of 8 U.S.C. § 1326(a). As part of his plea agreement, he waived his right
to appeal his conviction and sentence, unless the government appealed the sentence

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This order and judgment is not binding precedent, except under the doctrines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

March 16, 2020

Christopher M. Wolpert
Clerk of Court
Appellate Case: 19-1402 Document: 010110320037 Date Filed: 03/16/2020 Page: 1

2

or the sentence exceeded either the ten-year statutory maximum, see 8 U.S.C.
§ 1326(b)(1), or the advisory guideline range applicable to a total offense level of 12.
The plea agreement acknowledged that Loera-Herrera was entering his plea
knowingly and voluntarily and that he understood its consequences, including the
possible sentences and appeal waiver. At the change of plea hearing, the district
court reminded him of the possible sentences and broad appeal waiver, and he
confirmed that he understood and that he wanted to plead guilty. Based on his
responses to the court’s questions and its observations of his demeanor during the
hearing, the court accepted Loera-Herrera’s plea as having been knowingly and
voluntarily entered. It then sentenced him to 21 months’ imprisonment, which was
well below the statutory maximum and at the bottom of the guideline range of 21 to
27 months applicable to a total offense level of 12. The government did not appeal
the sentence. Despite the fact none of the exceptions to the appeal waiver applied,
Loera-Herrera filed a notice of appeal.
In ruling on a motion to enforce, 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.” Hahn, 359 F.3d at
1325.
In response to the government’s motion to enforce, Loera-Herrera, through
counsel, “acknowledge[d] that his appeal waiver is enforceable under the standard sot
out in [Hahn].” Aplt. Resp. at 1. He thus conceded that his waiver was knowing and
Appellate Case: 19-1402 Document: 010110320037 Date Filed: 03/16/2020 Page: 2

3

voluntary, that his appeal falls within the scope of the waiver, and that enforcement
of the waiver would not result in a miscarriage of justice. See United States v.
Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (noting that court need not address
uncontested Hahn factor).
Accordingly, we grant the government’s motion to enforce the appeal waiver
and dismiss the appeal.
Entered for the Court
Per Curiam
Appellate Case: 19-1402 Document: 010110320037 Date Filed: 03/16/2020 Page: 3