United States v. Verduzco-Morett , 143 F. App'x 100 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 3, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-3383
v. (D.C. No. 03-CR-40143-JAR)
MARCO ANTONIO VERDUZCO- (D. Kansas)
MORETT,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
Defendant was indicted for re-entry into the United States after being
deported for an aggravated felony, in violation of 8 U.S.C. § 1326(a)(2). On June
22, 2004, Defendant pled guilty to the charge. In his plea agreement, Defendant
*
This order and judgment is not binding precedent, except under the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.
waived his appellate rights. After reviewing the presentence report and applying
the Sentencing Guidelines, the district court sentenced Defendant to 46 months’
imprisonment. Defendant now appeals to this court.
On appeal, Defendant contends that the district court’s mandatory
application of the Sentencing Guidelines violated his constitutional rights under
United States v. Booker, __U.S.__, 125 S. Ct. 738 (2005). Before we address the
merits of Defendant’s appeal, however, it is necessary to address an argument
made by the government in its brief, namely that Defendant waived his right to
appeal his sentence. Paragraph 9 of the plea agreement states:
Defendant knowingly and voluntarily waives any right to appeal or
collaterally attack any matter in connection with this prosecution,
conviction and sentence. . . . By entering into this agreement, the
defendant knowingly waives any right to appeal a sentence imposed
which is within the guideline range determined appropriate by the
court. The defendant also waives any right to challenge a sentence or
otherwise attempt to modify or change his sentence or manner in
which it was determined in any collateral attack, including, but not
limited to, a motion brought under Title 28, U.S.C. § 2255 [except as
limited by United States v. Cockerham, 237 F.3d 1179, 1187 (10th
Cir. 2001)] and a motion brought under Title 18, U.S.C. §
3582(c)(2). In other words, the defendant waives the right to appeal
the sentence imposed in this case except to the extent, if any, the
court departs upwards from the applicable sentencing guideline range
determined by the court.
Rec., Supp. Vol. 1, at 12-13 (Petition to Enter Plea of Guilty and Order Entering
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Plea). 2 In its brief, the government argues that Defendant’s appeal rights, at least
as to the issues raised in this appeal, were waived.
Our general rule favors enforcing “plea agreements and their concomitant
waivers of appellate rights,” United States v. Hahn, 359 F.3d 1315, 1318 (10th
Cir. 2004) (en banc). In deciding whether to enforce the waiver, we must
determine: “(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.
The language of Defendant’s waiver is quite broad: “Defendant knowingly
and voluntarily waives any right to appeal or collaterally attack any matter in
connection with this prosecution, conviction and sentence,” Rec., Supp. Vol. I, at
12 (Petition to Enter Plea of Guilty and Order Entering Plea) (emphasis added).
This all-encompassing language demonstrates Defendant’s intent to waive all
potentially appealable issues. Because he did not expressly reserve an exception
for the instant challenge, Defendant’s Booker argument is within the scope of his
waiver.
Defendant has not argued that his waiver was not knowingly and
Two supplemental record submissions were filed with the court labeled
2
Supplemental Volume One. The supplemental record cited in this Order and
Judgment refers to the March 27, 2005, submission.
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voluntarily given; therefore, we need not address this issue and presume it
admitted. See United States v. Anderson, 374 F.3d 955, 958-59 (10th Cir. 2004)
(determining that appellant effectively admitted to knowingly and voluntarily
waiving his appellate rights because he did not contest the issue).
Finally, the facts of this case do not demonstrate that enforcement of the
waiver will result in a miscarriage of justice. We have outlined the following
four situations where we will not enforce a waiver because doing so would result
in a miscarriage of justice: “‘[1] where the district court relied on an
impermissible factor such as race, [2] where ineffective assistance of counsel in
connection with the negotiation of the waiver renders the waiver invalid, [3]
where the sentence exceeds the statutory maximum, or [4] where the waiver is
otherwise unlawful.’” 3 Hahn, 359 F.3d at 1327 (quoting United States v. Elliott,
264 F.3d 1171, 1173 (10th Cir. 2001)). The record does not support an argument
sufficient to demonstrate a miscarriage of justice.
3
In outlining what is sufficient to establish the fourth exception to the
waiver rule, we held that “‘the error [must] seriously affect[] the fairness,
integrity or public reputation of [the] judicial proceedings.’” Hahn, 359 F.3d at
1327 (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
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Accordingly, we enforce Defendant’s waiver of his appellate rights found
in his plea agreement and DISMISS this appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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