F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 17 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-3322
D.C. No. 01-CR-20040-00-JWL
LUIS DANIEL RAMOS-PALOMINO, (D. Kansas)
also known as Flaco,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO 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This order and judgment is not binding precedent, except under the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-appellant Luis Daniel Ramos-Palomino pled guilty to one count
of illegally reentering the United States after conviction of a felony, in violation
of 8 U.S.C. § 1326(b)(1). He was sentenced to 120 months of imprisonment, to
be followed by a term of three years of supervised release. In this appeal,
Mr. Palomino challenges his sentence, contending: (1) that the district court erred
in sentencing him to 120 months’ imprisonment after incorrectly grouping his
illegal reentry conviction with his federal drug convictions under § 3D1.2 of the
Sentencing Guidelines; and (2) that the district court erred in denying him a
reduction in sentencing for acceptance of responsibility under § 3E1.1 of the
Sentencing Guidelines.
The government has filed a motion to dismiss this appeal for lack of
jurisdiction, relying on the waiver of the right to appeal contained in the plea
agreement. Although Mr. Palomino has filed a response to the government’s
motion to dismiss, he does not address the waiver issue. Instead, he argues that:
(1) he will need to be resentenced in the instant case if his federal drug
convictions and sentences are reversed by this court on appeal; 1
and (2) he would
have received a ten to sixteen-month sentence for his illegal reentry conviction if
he had not been sentenced on the drug charges and the illegal reentry charge at
1
Mr. Palomino’s federal drug convictions and sentences have been affirmed
by this court on appeal. United States v. Ramos-Palomino , No. 01-3320, 2002
WL 31341530 (10th Cir. Oct. 18, 2002) (unpublished).
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the same time. Mr. Palomino also does not address the waiver issue in his
opening brief and he has not filed a reply brief. We agree with the government
that Mr. Palomino has waived his appellate rights and, therefore, dismiss this
appeal.
On July 16, 2001, Mr. Palomino signed a written plea agreement containing
the following language:
The defendant expressly waives the right to appeal his conviction and/or
sentence on any ground, including any appeal right conferred by Title 18,
United States Code, Section 3742, and the defendant further agrees not to
contest his conviction and/or sentence in any post-conviction proceeding,
including but not limited to a proceeding under Title 28, United States
Code, Section 2255. The defendant understands and acknowledges that his
sentence will be determined and imposed pursuant to the United States
Sentencing Guidelines. The defendant agrees that this Court has
jurisdiction and authority to impose any sentence up to the statutory
maximum established for the offense and expressly waives the right to
appeal his sentence, directly or collaterally, on any ground except for: 1) an
upward departure by the sentencing judge, 2) a sentence in excess of the
statutory maximum, or 3) a sentence in violation of law apart from the
Sentencing Guidelines.
R. Vol. 1, Doc. 17, at 2.
At the plea hearing on the same date, the following colloquy took place:
[The Court:] Now, there’s several aspects of that agreement that I want to
make sure that you understand. Of course, one is the waiver of appeal. As
you acknowledged earlier, you understood that normally a person would
have the right to appeal their sentence, but you are also entitled to waive
that right to appeal, if you wish, subject to certain conditions. Do you
understand that here in this plea agreement you are choosing to give up
your right to appeal your sentence in this case based upon that plea
agreement?
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Do you understand that?
[The Defendant:] Yes.
R. Vol. 2, Tr. of July 16, 2001 Proceedings, at 14-15.
A defendant is bound by the terms of a lawful plea agreement. United
States v. Atterberry , 144 F.3d 1299, 1300 (10th Cir. 1998). “A defendant’s
knowing and voluntary waiver of the statutory right to appeal his sentence is
generally enforceable.” United States v. Hernandez , 134 F.3d 1435, 1437 (10th
Cir. 1998). We review the question of whether the plea agreement was entered
into knowingly and voluntarily de novo. United States v. Rubio , 231 F.3d 709,
712 (10th Cir. 2000).
Mr. Palomino does not allege that his guilty plea was involuntarily or
unknowingly entered. Moreover, the record shows that the district court
conducted a thorough inquiry at the plea hearing, during which Mr. Palomino
affirmed that he understood the charge against him, the maximum penalties, the
rights he was waiving, and the factual basis for his plea. We see nothing to
indicate that Mr. Palomino’s plea was other than knowing and voluntary.
Therefore, a valid plea agreement exists and Mr. Palomino is bound by the
waiver, unless it falls within a legal or contractual exception.
The general enforceability of a waiver of the right to appeal is subject to
certain exceptions. For example, a defendant may seek appellate review
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notwithstanding the waiver if (1) the sentence exceeds the statutory maximum,
(2) the sentence is tainted by racial bias, or (3) the plea agreement is tainted by
ineffective assistance of counsel. United States v. Black, 201 F.3d 1296, 1301
(10th Cir. 2000). Mr. Palomino did not receive a sentence in excess of the
statutory maximum and he has not alleged racial bias or ineffective assistance of
counsel. 2 Furthermore, neither of the additional exceptions contained in the
written plea agreement itself–for appeal of an upward departure by the sentencing
judge and for appeal of a sentence in violation of law apart from the sentencing
guidelines–is implicated here.
To avoid dismissal of his appeal, Mr. Palomino must show why we should
not enforce the waiver provision of the plea agreement. Rubio, 231 F.3d at 711.
He has failed to do this. Mr. Palomino has offered no argument as to the validity
of the waiver and nothing in the record suggests that his decision to consent to the
waiver was unknowing or involuntary. “If [the] waiver is effective, we would
certainly overreach our jurisdiction to entertain this appeal when the plea
agreement deprived Defendant of the right to appeal.” Id .
2
We note that ineffective assistance of counsel claims should be raised in a
collateral proceeding, not on direct appeal. United States v. Galloway , 56 F.3d
1239, 1240 (10th Cir. 1995).
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Accordingly, the government’s motion to dismiss is GRANTED. The
appeal is DISMISSED.
Entered for the Court
John C. Porfilio
Circuit Judge
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