United States v. Sierra ( 2022 )

Appellate Case: 21-2130 Document: 010110643590 Date Filed: 02/10/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 10, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-2130
(D.C. No. 2:21-CR-00727-KWR-1)
YVETTE MARIE SIERRA, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, KELLY, and MORITZ, Circuit Judges.
_________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in Yvette Marie Sierra’s plea agreement pursuant to United States v.
Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam), and 10th Cir. R.
27.3(a)(1)(d). Exercising jurisdiction under 28 U.S.C. § 1291, we grant the motion
and dismiss the appeal.
Ms. Sierra pleaded guilty to conspiracy to transport illegal aliens, in violation
of 8 U.S.C. § 1324(a)(1)(A)(v)(I). The plea agreement included a broad waiver of
appellate rights, including the right to appeal any sentence “at or under the maximum
*
This order and judgment is not binding precedent, except under the doctrines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.
Appellate Case: 21-2130 Document: 010110643590 Date Filed: 02/10/2022 Page: 2
statutory penalty authorized by law.” Mot. to Enforce, Exh. 1 at 7. As pertinent
here, the agreement provided a detailed explanation of the possible penalties and the
parties’ stipulations to an offense level of 12, a three-level enhancement for
conspiring to transport more than six aliens, and downward adjustments for
acceptance of responsibility and because Ms. Sierra was a minor participant in the
conspiracy. Ms. Sierra acknowledged that the parties’ stipulations were not binding
on the district court and that whether to accept them was “a matter solely within the
discretion of the Court after it has reviewed the presentence report [PSR].” Id. at 6.
She also acknowledged that although she admitted to conspiring to transport only 13
aliens as the factual basis for her plea, the court could rely on facts in the presentence
report to determine her sentence. Both by signing the written plea agreement and in
her responses to the court’s questions at the change of plea hearing, Ms. Sierra
acknowledged that her plea was knowing and voluntary, and that she understood its
consequences, including the possible sentences and the appeal waiver.
The PSR revealed additional facts about Ms. Sierra’s participation in the
conspiracy, including that she admitted to border patrol agents that at one point, there
were close to 35 aliens staying in her home. It thus included the factual finding that
she conspired to transport and harbor more than 25 undocumented aliens. As a result
of that finding, the PSR’s offense level computation tracked the parties’ stipulations
in the plea agreement except that it recommended a six-level increase because the
offense involved transporting and harboring over 25 aliens, instead of the stipulated
three-level enhancement for an offense involving between 6 and 24 aliens. After the
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enhancement and stipulated downward adjustments, the PSR recommended a total
offense level of 12, resulting in a guidelines range of 10 to 16 months’ imprisonment.
Ms. Sierra did not file written objections to the PSR, and defense counsel told
the court at the sentencing hearing that he had no objections to the PSR.1 The court
adopted the PSR’s factual findings and guidelines-range calculation. The prosecutor
then commented that Ms. Sierra “transported and housed a significant amount of
illegal aliens,” and asked the court to impose a low-end guidelines sentence based on
“the number of illegal aliens” and “the way that presentence report reads.” Mot. to
Enforce, Exh. 3 at 5. Noting the finding in the PSR that Ms. Sierra “conspired with
others to transport and house at least 25 undocumented aliens,” the court sentenced
her to 10 months in prison—the lowest sentence in the guideline-range. Id.Despite receiving a sentence well below the statutory ten-year maximum, see
8 U.S.C. § 1324(a)(1)(B)(i), Ms. Sierra filed a notice of appeal. Her docketing
statement indicates that she intends to argue that the prosecution breached the plea
agreement and to challenge the reasonableness of her sentence.
1
Contrary to Ms. Sierra’s contention, she did not effectively object to the
finding in the PSR by relying on her factual admission in the plea agreement during
her interview with the Probation Officer who prepared the PSR. See Fed. R. Crim.
P. 32(f)(1) (providing that that a party who wants to object to a PSR “must state in
writing any objections, including objections to material information [and] sentencing
guideline ranges … contained in or omitted from the report” (emphasis added));
United States v. Shinault, 147 F.3d 1266, 1278 (10th Cir. 1998) (“Failure to object to
a fact in a presentence report, or failure to object at the hearing, acts as an admission
of fact.” (internal quotation marks omitted)).
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In response to the government’s motion to enforce, Ms. Sierra argues that the
appeal waiver is unenforceable because the government breached the plea
agreement.2 Specifically, she contends the prosecutor breached the agreement by not
urging the court to adopt the parties’ stipulation for a three-level enhancement based
on her admission in the plea agreement about the number of aliens involved, instead
of the six-level enhancement supported by the factual finding in the PSR.
“[A]n appellate waiver is not enforceable if the Government breaches its
obligations under the plea agreement.” United States v. Rodriguez-Rivera, 518 F.3d
1208, 1212 (10th Cir. 2008). “General principles of contract law define the content
and scope of the government’s obligations under a plea agreement.” United States v.
VanDam, 493 F.3d 1194, 1199 (10th Cir. 2007), overruled on other grounds by
Puckett v. United States, 556 U.S. 129 (2009). “We thus look to the express
language in the agreement to identify both the nature of the government’s promise
and the defendant’s reasonable understanding of this promise at the time of the entry
of the guilty plea.” Id. “We evaluate the record as a whole to ascertain whether the
government complied with its promise.” Id.Ms. Sierra acknowledges that she did not object to the prosecutor’s comments
or otherwise raise her breach-of-plea-agreement argument the sentencing hearing.
2
The heading of the response cites Anders v. California, 386 U.S. 738 (1967),
but the breach-of-plea-agreement contention is not presented as only arguable, and
counsel has not moved to withdraw. See id. at 744. Accordingly, we will not treat
the filing as an Anders response.
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We thus review her argument for plain error. See Puckett, 556 U.S. at 133-34;
United States v. Bullcoming, 579 F.3d 1200, 1205 (10th Cir. 2009).
The plain-error test requires the defendant to demonstrate (1) error, (2) that is
plain, (3) that affects her substantial rights, and, if those first three prongs are met,
(4) that the error seriously affects the fairness, integrity or public reputation of the
judicial proceedings. See United States v. Olano, 507 U.S. 725, 732-36 (1993). The
Court held in Puckett that, in a breach-of-plea-agreement case, to establish the third
plain-error prong, the defendant must show that the error had a prejudicial effect on
the sentence imposed. See 556 U.S. at 142 n.4. Ms. Sierra cannot meet any of these
requirements.
First, the prosecutor’s comments at the sentencing hearing did not breach the
plea agreement, so Ms. Sierra cannot establish error, much less plain error. The
government stipulated to a three-level enhancement, but nothing in the plea
agreement required the prosecutor to argue for a three-level enhancement at the
sentencing hearing despite facts in the PSR supporting a six-level enhancement. To
the contrary, the agreement provides that “[a]part from the provisions in this plea
agreement, the [government] reserve[s] the[] right[] to assert any position or
argument with respect to the sentence to be imposed, including but not limited to the
applicability of particular sentencing guidelines and adjustments under the
guidelines.” Mot. to Enforce, Exh. 1, at 6. Moreover, the prosecutor did not argue
that the court should adopt the PSR’s recommendation for a six-level enhancement—
he made his comment about imposing a sentence based on the “significant” number
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of aliens involved and “the way that presentence report reads” after the court had
already adopted the PSR’s unobjected-to findings and recommended guidelines
range. Mot. to Enforce, Exh. 3 at 5. Thus, his comments were not an attempt to
avoid the government’s stipulation.
Second, even if the prosecutor’s comments somehow breached the plea
agreement, Ms. Sierra cannot show that the error affected her substantial rights. By
signing the plea agreement, she acknowledged not only that the parties’ stipulations
were not binding on the court but also that, regardless of the stipulations, the court
could rely on the facts in the PSR in determining the appropriate guidelines range.
Ms. Sierra maintains that the government’s supposed breach of the plea agreement
affected her substantial rights because “she was denied the benefit of her plea
bargain, namely, the Government arguing for a sentence based on” the parties’
stipulation to a three-level enhancement. Resp. at 4. “Had the Government lived up
to the plea agreement,” she argues, the court would have adopted “a sentencing range
with a minimum of 4 months, instead of . . . 10 months,” id., and it would have
sentenced her to 4 months instead of 10, id. at 5. But there is simply nothing in the
record to support her speculation that had the government pushed for a three-level
enhancement, the court would have ignored the information in the PSR that
supported a six-level enhancement—information based on her admission to law
enforcement officers—and imposed a shorter sentence.
Having rejected Ms. Sierra’s contention that her appeal waiver is
unenforceable based on the government’s alleged breach of the plea agreement, we
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must rule on the government’s motion to enforce. In doing so, we consider whether
the appeal falls within the scope of the waiver, whether the waiver was knowing and
voluntary, and whether enforcing it would result in a miscarriage of justice. See
Hahn, 359 F.3d at 1325. Based on our review of the written plea agreement and
transcript of the change of plea hearing, we conclude that the Hahn factors have been
met, and Ms. Sierra does not contend otherwise. Accordingly, we grant the
government’s motion to enforce the appellate waiver in the plea agreement, and we
dismiss this appeal.
Entered for the Court
Per Curiam
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