United States v. Ortiz-Gonzalez ( 2023 )

Appellate Case: 22-1284 Document: 010110825297 Date Filed: 03/13/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 13, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 22-1284
v. (D.C. No. 1:21-CR-00231-PAB-2)
(D. Colo.)
SERGIO GUADALUPE
ORTIZ-GONZALEZ, a/k/a Sinaloa,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, EID, and ROSSMAN, Circuit Judges.
_________________________________
Sergio Guadalupe Ortiz-Gonzalez pleaded guilty to distribution and possession
with intent to distribute 50 grams and more of methamphetamine (actual), and
received a 158-month prison sentence. He has appealed from that sentence. His plea
agreement contains an appeal waiver, which the government now seeks to enforce
under United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc).
Mr. Ortiz-Gonzalez’s counsel responds that he is not aware of any non-frivolous
argument for overcoming the waiver, and he has moved to withdraw. See Anders v.
California, 386 U.S. 738, 744 (1967).
*
This order and judgment is not binding precedent, except under the doctrines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: 22-1284 Document: 010110825297 Date Filed: 03/13/2023 Page: 2
By order dated December 16, 2022, this court gave Mr. Ortiz-Gonzalez until
January 6, 2023, to file a pro se response, if desired. See id. (“A copy of counsel’s
brief should be furnished the indigent and time allowed him to raise any points that
he chooses . . . .”). He filed nothing by that date. On January 17, however, the court
received Mr. Ortiz-Gonzalez’s motion for extension of time to “file [his] appeal” and
“obtain[] appellate counsel.” Letter received Jan. 17, 2023, at 1. The court
responded by letter the next day, informing Mr. Ortiz-Gonzalez that the appeal had
already been filed and he currently had counsel, but his counsel could see no
argument against the government’s motion, so Mr. Ortiz-Gonzalez now had an
opportunity to file his own response to that motion. The court set a new deadline of
January 25 and warned him, “If you do not file a response by that date, the court may
act on the government’s motion without your input.” Letter dated Jan. 18, 2023, at 1.
The court received nothing by January 25. On February 1, the court sua sponte
extended his deadline to February 8. The court still received nothing by that date,
and it has received nothing since. We will therefore decide the government’s motion
on the current record. Our task is to make “a full examination of all the proceedings”
and “decide whether the case [i.e., opposition to the government’s motion] is wholly
frivolous.” Anders, 386 U.S. at 744.
Our first question when faced with a motion to enforce an appeal waiver is
“whether the disputed appeal falls within the scope of the waiver.” Hahn, 359 F.3d
at 1325. Here, the waiver embraces every aspect of pretrial proceedings and
sentencing, but still allows an appeal in three circumstances:
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Appellate Case: 22-1284 Document: 010110825297 Date Filed: 03/13/2023 Page: 3
(1) the sentence exceeds the maximum sentence provided
in the statute of conviction . . . ;
(2) the sentence exceeds the top end of the advisory
guideline range . . . that applies for the defendant’s
criminal history (as determined by the district court) at a
total offense level of 35; or
(3) the government appeals the sentence imposed.
Mot. to Enforce an Appeal Waiver, Attach. 1 (“Plea Agreement”) at 3. The first
exception cannot apply because life is the maximum sentence under the statute of
conviction, see 21 U.S.C. § 841(b)(1)(A)(viii), and Mr. Ortiz-Gonzalez’s 158-month
sentence did not exceed that. The second exception cannot apply because the top end
of the guidelines range, as calculated by the district court, was 210 months, and
Mr. Ortiz-Gonzalez’s sentence did not exceed that. The third exception cannot apply
because the government has not appealed. Thus, this appeal falls within the waiver’s
scope.
We next ask “whether the defendant knowingly and voluntarily waived
his appellate rights.” Hahn, 359 F.3d at 1325. Here, the plea agreement states as
much. See Plea Agreement at 2 (“[T]he defendant knowingly and voluntarily waives
the right to appeal any matter in connection with this prosecution, conviction, or
sentence (including the restitution order), unless it meets [one of the exceptions
discussed above].”). The district court also confirmed as much at the change-of-plea
hearing. The court first explained the waiver and the three potential exceptions, and
then had the following exchange with Mr. Ortiz-Gonzalez:
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THE COURT: . . . Have you had a chance, Mr. Ortiz-
Gonzalez, to review that aspect of your waiver of appellate
rights and talk to [your attorney] about it?
THE DEFENDANT: Yes.
THE COURT: Do you believe that you understand that
waiver of appellate rights?
THE DEFENDANT: Yes.
Mot. to Enforce an Appeal Waiver, Attach. 2 at 10–11. Thus, on the record before
us, the knowing-and-voluntary standard is satisfied.
Finally, we ask “whether enforcing the waiver would result in a miscarriage of
justice.” Hahn, 359 F.3d at 1325. We have reviewed the record and see nothing that
might satisfy this high standard. We further note that, to the extent Mr. Ortiz-
Gonzalez might believe that he received ineffective assistance of counsel, or that the
prosecutor committed misconduct in his case, his waiver does not bar him from
pursuing a collateral attack on those issues. See Plea Agreement at 3. Moreover, if
“an explicitly retroactive change in the sentencing guidelines or sentencing statute”
occurs, the plea agreement does not bar bringing a motion in the district court to
receive the benefit of that change. Id.In sum, we find this appeal falls within Mr. Ortiz-Gonzalez’s appeal waiver
and no other Hahn factor counsels against enforcement of the waiver. We therefore
grant counsel’s motion to withdraw, grant the government’s motion to enforce the
appeal waiver, and dismiss this appeal.
Entered for the Court
Per Curiam
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