Opinion
22-1298
02-03-2023
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EMIR ITZAYAN QUIROA PACHECO, a/k/a Rayito, Defendant-Appellant.
D.C. No. 1:21-CR-00231-PAB-5 (D. Colo.)
Before HARTZ, McHUGH, and MORITZ, Circuit Judges.
ORDER AND JUDGMENT [*]
PER CURIAM.
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 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.
[*] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.