United States v. Luna-Martinez , 45 F. App'x 869 ( 2002 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    SEP 16 2002
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                   No. 01-6264
    (D.C. No. 01-CR-25-C)
    MARTIN LUNA-MARTINEZ,                             (W.D. Oklahoma)
    Defendant - Appellant.
    ORDER AND JUDGMENT           *
    Before ANDERSON and BALDOCK , Circuit Judges, and             BRORBY , Senior
    Circuit Judge.
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 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    This order and judgment is not binding precedent, except under the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. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    Defendant Martin Luna-Martinez pleaded guilty to one count of possession
    with intent to distribute cocaine powder in violation of 
    21 U.S.C. § 841
    (a)(1).
    The plea agreement states, in pertinent part:
    . . . defendant in exchange for the promises and concessions made by
    the United States in this plea agreement, knowingly and voluntarily
    waives his right to appeal or collaterally challenge:
    a.    Defendant’s guilty plea and any other aspect of
    his conviction . . . .
    b.    Defendant’s sentence as imposed by the Court and the
    manner in which the sentence is determined, provided
    the sentence is within or below the applicable guideline
    range determined by the Court to apply to this case, even
    if the Court rejects one or more of the positions of the
    United States or the defendant set forth in paragraph 7
    concerning the application of the U.S. Sentencing
    Guidelines . . . .
    Record, Vol. I, Plea Agreement, at 4-5.
    The plea agreement further provides a maximum imprisonment term under
    the plea of not less than five years and not more than forty years.   See 
    id. at 2
    .
    The district court determined defendant’s total offense level to be twenty-seven
    with a criminal history category of one for a guideline range of seventy to eighty-
    seven months of imprisonment. After review of the presentence report and
    defendant’s objections to the report, the court sentenced defendant to seventy
    months of imprisonment, four years of supervised release, and a special
    assessment of $100.00.
    -2-
    On appeal, defendant argues he must be resentenced because: (1) the
    district court’s finding that there was sufficient evidence to support an
    enhancement for possession of a firearm under United States Sentencing
    Guidelines § 2D1.1(b)(1) was clearly erroneous; and (2) the district court’s
    finding that defendant did not meet the criteria of 
    18 U.S.C. § 3553
    (f) and
    U.S.S.G. § 2D1.1(b)(1) was clearly erroneous. Defendant does not address the
    waiver-of-appeal provision contained in the plea agreement in his opening brief,
    and he did not file a reply brief.
    In its response brief, the United States correctly argues that defendant
    knowingly and voluntarily waived his right to appeal by entering into the plea
    agreement. Subject to certain limited exceptions, a defendant’s knowing and
    voluntary waiver of the right to appeal is enforceable.     See United States v. Rubio ,
    
    231 F.3d 709
    , 712 (10th Cir. 2000). Whether a defendant’s waiver was knowing
    and voluntary is reviewed de novo.      See id . In the instant case, nothing in the
    record suggests defendant’s decision to enter into the plea agreement was
    unknowing or involuntary. In addition, defendant does not argue or even suggest
    he unknowingly or involuntarily entered into the plea agreement.
    The plea agreement provides two exceptions to the waiver-of-appeal
    provision. First, the agreement provides that defendant specifically does not
    waive the right to appeal an upward departure from the sentencing guideline range
    -3-
    determined by the court. In the instant case, defendant’s sentence of seventy
    months of imprisonment was well within the applicable guideline range of seventy
    to eighty-seven months of imprisonment as determined by the court. Second, the
    agreement provides that defendant’s waiver of his right to appeal shall not apply
    to appeals based on changes in the law reflected in Tenth Circuit or Supreme
    Court cases decided after the date of the agreement which are held by the Tenth
    Circuit or Supreme Court to have retroactive effect. This exception is
    inapplicable to the instant appeal.
    Because defendant waived his right to appeal the sentence he received as a
    result of his plea agreement, this appeal is DISMISSED.
    Entered for the Court
    Bobby R. Baldock
    Circuit Judge
    -4-
    

Document Info

Docket Number: 01-6264

Citation Numbers: 45 F. App'x 869

Judges: Anderson, Baldock, Brorby

Filed Date: 9/16/2002

Precedential Status: Non-Precedential

Modified Date: 8/3/2023