United States v. Lopez ( 2022 )

Appellate Case: 21-3132 Document: 010110716749 Date Filed: 07/27/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 27, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 21-3132
(D.C. No. 6:20-CR-10036-EFM-1)
ISMAEL J. LOPEZ, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, BRISCOE, and MATHESON, Circuit Judges.
_________________________________
Ismael Lopez pled guilty to one count of being a felon in possession of a firearm.
Under the plea agreement, the parties agreed to request a prison sentence between 96 and
108 months. The district court determined the United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”) advisory sentence was 120 months. At the sentencing
hearing, the prosecution told the court that it was not “asking for a sentence of anything
other than 108 months,” ROA, Vol. 3 at 122, but then argued that the criminal history
score in the Presentence Investigation Report (“PSIR”) underrepresented Mr. Lopez’s
*
This order and judgment is not binding precedent, except under the doctrines of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: 21-3132 Document: 010110716749 Date Filed: 07/27/2022 Page: 2
criminal history. Mr. Lopez’s attorney requested a 96-month sentence. The court
sentenced Mr. Lopez to 120 months.
For the first time on appeal, Mr. Lopez argues the Government breached the plea
agreement when the prosecutor stated at the sentencing hearing that the criminal history
score in the PSIR unrepresented his criminal history. Reviewing for plain error, we
conclude that even if the Government breached the plea agreement, Mr. Lopez has not
shown the breach affected his substantial rights—that he would have received a different
sentence absent the breach. Exercising jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a), we affirm.
I. BACKGROUND
A. Factual History
Five times between December 2019 and June 2020, law enforcement found guns
and/or drugs in vehicles or apartments linked to Mr. Lopez:
 December 2019—Police officers responded to reports of a shooting at an
apartment complex. A man later identified as Mr. Lopez emerged from one
of the apartments covered in blood. The police obtained a warrant to search
the apartment from which Mr. Lopez emerged and found three guns.1
 January 2020—The police stopped a truck with Mr. Lopez in the
passenger seat, searched the vehicle, found and seized drugs and five guns,
and arrested Mr. Lopez.
 April 9, 2020—The police found a gun in a car with Mr. Lopez again in the
passenger seat.
1
One of the guns was rusted and in “very poor condition,” and its serial number
was indecipherable. ROA, Vol. 2 at 18; ROA, Vol. 3 at 90, 93-95.
2
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 April 14, 2020—The police executed a search warrant for Mr. Lopez’s
apartment and found a gun and drugs.
 June 2020—While executing an arrest warrant for Mr. Lopez, the police
found a gun in a car that he was driving.
B. Procedural History
Indictment
A grand jury in the District of Kansas charged Mr. Lopez with nine counts—five
counts of being a felon in possession of a firearm, three counts related to drug trafficking
and distribution, and one count of possessing a firearm in furtherance of a drug
trafficking crime.
Plea Agreement
Mr. Lopez pled guilty to one count of being a felon in possession of a firearm.
Under the plea agreement, the Government agreed (1) not to file additional charges based
on the five incidents described above, (2) to dismiss the other eight counts, and (3) to
recommend that Mr. Lopez receive a Guidelines offense level reduction for acceptance of
responsibility. The parties also agreed to request a sentence between 96 and 108 months,
understanding that this agreement was not binding on the court. ROA, Vol. 1 at 43.
PSIR
The PSIR determined that under U.S.S.G. § 2K2.1(a)(5), his base offense level
was 18 because his crime involved a type of firearm described in 26 U.S.C. § 5845(a).
The PSIR also applied the following enhancements and reduction:
3
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 A four-level enhancement under U.S.S.G. § 2K2.1(b)(1) because his felon-
in-possession offense involved eleven guns;2
 A four-level enhancement under U.S.S.G. § 2K2.1(b)(4)(B) because one of
the guns had an obliterated serial number;
 A four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) because he
possessed a firearm in connection with drug trafficking; and
 A three-level reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1(a)-(b).
His adjusted total offense level was 27.
The PSIR also calculated Mr. Lopez’s criminal history score as 11, resulting in a
criminal history category of V. The PSIR said Mr. Lopez did not receive criminal history
points for several previous convictions because they did not count under U.S.S.G.
§ 4A1.2(c)(1)-(2), (e)(3). The unscored offenses included battery and domestic battery.3
Mr. Lopez’s adjusted offense level and criminal history category yielded a 120-to-
150-month Guidelines range. The statutory maximum for his offense was 120 months, so
120 months became his advisory Guidelines sentence.
Sentencing Hearing
At the sentencing hearing, the district court accepted the PSIR’s Guidelines
calculations and then heard the parties’ sentencing recommendations. The prosecutor and
the court had the following exchange:
2
The total number of guns included the five connected with the January 2020
traffic stop and six other guns that “were located, as relevant conduct, in other counts
charged against the defendant.” ROA, Vol. 2 at 20.
3
The PSIR did not discuss the underlying facts of those offenses.
4
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COURT: Let me hear recommendations from the parties as
to sentencing.
PROSECUTOR: Thank you, Your Honor. Before I get into
my comments, I want to make one thing very clear. In these
kind of cases, I always want to be certain that the Court
understands I’m not asking for any sentence other than 108
months. The plea agreement in this case called for the
Government cannot request a sentence in excess of 108
months—
COURT: Right.
PROSECUTOR: —or the defense cannot ask for a sentence
of less than 96 months, so nothing I’m about to say is—what I
want to do is not indicate to the court that I’m asking for a
sentence of anything other than 108 months, but that is the
sentence we believe is appropriate in this case, Judge.
The defendant, the deal we made—under the deal we made,
the defendant was able to avoid additional time that he could
have been facing if he’d gone to trial and been convicted of
everything. But the totality of the criminal conduct in this
case, all five incidents, where the defendant is in possession
of or near multiple firearms, is consistent with the defendant’s
criminal history. And I would argue, Judge, the defendant
was at criminal history V, but I think you can make an
argument, which I’m going to do, that that underrepresents
his criminal history because—
COURT: In fact, I have a note to that regard. There’s lots of
very violent and unscored criminal history in his PSIR,
unscored so he only has 11 points, but I do think that
underrepresents his criminal history.
PROSECUTOR: Okay. And by my count, Judge, just
going from his adult convictions, there’s ten previous
convictions, some of which are traffic-related, admittedly, but
there’s ten that are not scored. And that’s why I believe that a
criminal history category of IV—V, excuse me, does
underrepresent his true criminal history. And as we’ve
already discussed, some of that criminal history is for violent
crimes, battery, domestic battery, [aggravated] assault. We
5
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believe, Your Honor, that the defendant has earned a sentence
of 108 months, so we’d ask the Court not to consider
anything less than that sentence, Judge. Thank you.
ROA, Vol. 3 at 122-23 (spacing and formatting altered).
Mr. Lopez requested a 96-month sentence. He argued that a downward variance
from 120 months was warranted given that the court had applied a four-level
enhancement for a gun with an obliterated serial number despite that the gun did not
work.
After hearing the parties’ recommendations, the court rejected the plea
agreement’s 96-to-108-month range. It reiterated that it “had made a note that [it]
thought [Mr. Lopez’s] criminal history category V pretty seriously understated the
severity of his criminal background.” Id. at 125-26. The court continued: “There are, by
my count, 43 paragraphs—again some of those are traffic offenses—of his criminal
history, lots of violent unscored offenses. I think his criminal history category V
seriously understates his criminal history category. . . . [T]here’s lots of violent offenses.
Mr. Lopez is a violent man. I think [the prosecutor] argued that in one of his arguments.
He says he beats people up, I think is what he said.” Id. at 126. And the court expressed
“concern[] about the level of violent conduct that Mr. Lopez, a relatively young man,
32 years old, has engaged in.” Id. at 128.
The court sentenced Mr. Lopez to the Guidelines sentence of 120 months, to be
followed by three years of supervised release. Neither party objected to the sentence.
Mr. Lopez timely appealed.
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II. DISCUSSION
Mr. Lopez argues for the first time on appeal that the Government breached the
plea agreement by arguing for a sentence above the agreed-upon 96-to-108-month range
and that he is therefore is entitled to relief under our plain error standard. We disagree
and affirm.4
A. Plain Error
Mr. Lopez failed to object in district court to the Government’s purported breach
of the plea agreement. We therefore review for plain error. See Puckett v. United States,
556 U.S. 129, 133-35 (2009); United States v. Mendoza, 698 F.3d 1303, 1309 (10th
Cir. 2012). Under that standard, Mr. Lopez bears the burden of establishing “(1) error,
(2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the
4
The plea agreement prohibited Mr. Lopez from “appeal[ing] or collaterally
attack[ing] any matter in connection with th[e] prosecution, his conviction, or the
components of the sentence to be imposed herein.” ROA, Vol. 1 at 45. The Government
invokes this appeal waiver for the first time in its brief. Aplee. Br. at 13.
“[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). But an appeal waiver applies if the government has not
breached the agreement. See id. at 1217.
Because, for purposes of plain error review, we assume rather than decide that the
government breached the plea agreement, it appears the appeal waiver here would not
apply under Rodriguez-Rivera. But we need not resolve that question because we
exercise our discretion to reach the merits. See United States v. Garcia-Ramirez, 778
F.3d 856, 857 (10th Cir. 2015) (per curiam); United States v. Black, 773 F.3d 1113, 1115
n.2 (10th Cir. 2014).
7
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fairness, integrity, or public reputation of judicial proceedings.” United States v. Wright,
848 F.3d 1274, 1278 (10th Cir. 2017) (quotations omitted).5
At the third step of plain error, “the defendant ordinarily must show a reasonable
probability that, but for the error, the outcome of the proceeding would have been
different.” Rosales-Mireles v. United States, 138 S. Ct 1897, 1904-05 (2018) (quotations
omitted). “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Wright, 848 F.3d at 1278 (quotations omitted).
B. Analysis
Failure to Show Reasonable Probability of Prejudice
Mr. Lopez has not met his burden under the “rigorous” and “demanding” plain
error standard. United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014)
(quotations omitted). Even assuming the Government plainly breached the plea
agreement by arguing that the PSIR underrepresented Mr. Lopez’s criminal history,6
5
As applied to a plea agreement breach appeal, Mr. Lopez must show “(1) the
government breached the plea agreement, (2) the breach was plain, (3) the breach
affected the defendant’s sentence (i.e. absent the breach, the defendant likely would have
received the sentence the prosecutor had promised to recommend), and (4) the breach
affected the fairness and integrity of judicial proceedings as a whole.” United States v.
Rodriguez-Barbosa, 762 F. App’x 538, 541 (10th Cir. 2019) (unpublished) (citing
Puckett, 556 U.S. at 139-43, 142 n.4) (cited for persuasive value under Fed. R. App. P.
32.1; 10th Cir. R. 32.1(A)).
6
We doubt the prosecutor’s discussion of Mr. Lopez’s criminal history, if limited
to supporting the Government’s request for a 108-month sentence and to countering
Mr. Lopez’s request for 96 months, would have caused error, especially when the
prosecutor said three times he was asking for 108 months. See ROA, Vol. 3 at 122-23.
But the prosecutor’s argument that the PSIR’s criminal history category underrepresented
8
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Mr. Lopez fails on step three of plain error review because he has not demonstrated a
reasonable probability that he would have received a different sentence without the
Government’s criminal history argument.
At the sentencing hearing, the district judge expressed concern about Mr. Lopez’s
criminal history before the Government raised the issue. When the Government began to
argue that the PSIR underrepresented Mr. Lopez’s criminal history, the court interrupted,
stating, “In fact, I have a note to that regard. There’s lots of very violent and unscored
criminal history in his PSIR, unscored so he only has 11 points, but I do think that
underrepresents his criminal history.” ROA, Vol. 3 at 123. Moments later, the court
again stated it “had made a note that [it] thought [Mr. Lopez’s] criminal history
category V pretty seriously understated the severity of [his] criminal background.” Id.
at 125-26.
The court’s independent concern about Mr. Lopez’s criminal history, expressed
before the Government raised the issue, shows the Government’s criminal history
argument had little if any impact on the sentence.
Mr. Lopez’s Arguments
Mr. Lopez acknowledges that “the court had some concerns about [his] criminal
history on its own,” but argues that he has established prejudice for two reasons. Aplt.
Reply Br. at 21; see Aplt. Br. at 28-34. We disagree.
Mr. Lopez’s criminal history raises sufficient concern about compliance with the plea
agreement that we resolve this appeal at step three of plain error review.
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First, he contends that the Government’s criminal history argument influenced the
court to impose the 120-month sentence. See Aplt. Br. at 31-33; Aplt. Reply Br. at 21-23.
In support, he notes that “[t]he district court did not mention [his] criminal history as an
aggravating factor until after the prosecutor did so himself.” Aplt. Reply Br. at 21. And
he argues “[t]he court repeated the prosecutor’s arguments regarding the number of
unscored offenses and the alleged violence of Mr. Lopez’s history.” Aplt. Br. at 32. But
the sentencing hearing transcript shows the opposite. As the Government began
addressing Mr. Lopez’s criminal history, the district court interrupted and said it had
already noted that “there’s lots of very violent and unscored criminal history in [Mr.
Lopez’s] PSIR.” ROA, Vol. 3 at 122-23. Thus, we disagree with Mr. Lopez’s contention
that “[t]he prosecutor’s argument ‘focused the district court’s attention’ on the criminal-
history underrepresentation, ‘with the weight of the government’s recommendation
behind it.’” Aplt. Br. at 31 (quoting United States v. Navarro, 817 F.3d 494, 501
(7th Cir. 2015)).7
7
Earlier in the hearing, the prosecutor, arguing in favor of a four-level
enhancement under § 2K2.1(b)(1), said Mr. Lopez “beats people.” ROA, Vol. 3 at 112;
see id. at 110-12. This statement was not part of his later argument, the one Mr. Lopez
challenges on appeal, that Mr. Lopez’s criminal history category underrepresented his
criminal history. See id. at 122-23. At the end of the hearing, when the district court
imposed the sentence, it referred to the prosecutor’s statements about the
enhancement. Mr. Lopez acknowledges that the court was “[r]eferencing an argument
the prosecutor had made in support of one of the guidelines enhancement[s],” Aplt. Br.
at 11, not the prosecutor’s criminal history argument.
10
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Second, Mr. Lopez relies on three cases, but they do not help him. In each case,
the prosecution recommended a sentence contrary to the plea agreement. That did not
happen here.
In Santobello v. New York, 404 U.S. 257 (1971), the government recommended a
one-year sentence, breaching its promise to make no sentencing recommendations. Id.
at 258-59. Defense counsel immediately objected. Id. at 259. The judge sentenced the
defendant to one year in prison, stating his sentencing decision was “not at all influenced
by” the prosecutor’s recommendation. Id. at 259-60. The Supreme Court, reviewing for
harmless error,8 said that it had “no reason to doubt” that “the prosecutor’s
recommendation did not influence [the judge].” Id. at 262.9 Santobello is inapposite.
“Whether an error can be found harmless is simply a different question from whether it
can be subjected to plain-error review. Santobello (given that the error in that case was
preserved) necessarily addressed only the former.” Puckett, 556 U.S. at 139. The
prosecution must show harmless error. United States v. Summers, 414 F.3d 1287, 1303
(10th Cir. 2005). In this case, Mr. Lopez must show a reasonable probability that he
would have received a different sentence absent the Government’s breach. See United
8
In Puckett, the Court said that Santobello applied harmless error review. See
Puckett, 556 U.S. at 139.
9
The Court vacated the sentence “in “the interests of justice” and based on
“appropriate recognition of the duties of the prosecution in relation to promises made in
the negotiation of pleas of guilty.” Santobello, 404 U.S. at 262-63.
11
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States v. Gonzalez-Huerta, 403 F.3d 727, 733 (10th Cir. 2005). He has not met that
burden.
Mr. Lopez’s reliance on United States v. Kirkland, 851 F.3d 499 (5th Cir. 2017)
and United States v. Navarro, 817 F.3d 494 (7th Cir. 2015), also is misplaced. In both,
the government explicitly recommended sentences above the range the parties agreed to
in plea agreements. See Kirkland, 851 F.3d at 501, 504 (explaining that the government
“aggressively” argued for a high-end sentence despite agreeing to recommend a sentence
at the low end of the Guidelines range); Navarro, 817 F.3d at 497 (government asked for
a 320-month sentence despite agreeing not to request a sentence outside the Guidelines
range, which the district court calculated as 188 to 235 months). Here, the Government
asked for 108 months and never recommended a specific sentence for Mr. Lopez outside
of the parties’ agreed-upon range.
* * * *
The district court concluded the PSIR underrepresented Mr. Lopez’s criminal
history before the Government raised the issue. Mr. Lopez’s counter-arguments are
unconvincing. He has not shown a reasonable probability that he would have received a
different sentence had the Government not presented its criminal history argument. He
has thus not satisfied step three of plain error review.
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III. CONCLUSION
We affirm Mr. Lopez’s sentence.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
13