F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 9, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Respondent-Appellee,
v. No. 05-4227
CESAR C ONTRERAS-RA M OS,
Petitioner-A ppellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF UTAH
(D .C . N O. 2:04-C R-847-01-D AK )
Submitted on the Briefs. *
Bel-Ami De M ontreux, M ontreux Freres, P.C., Salt Lake City, Utah for
Petitioner-A ppellant.
W ayne T. Dance, Assistant United States Attorney, Office of the United States
Attorney, Salt Lake City, Utah for Respondent-Appellee.
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
M cCO NNELL, Circuit Judge.
*
After examining the brief 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(a)(2); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
Defendant-Appellant Cesar Contreras-Ramos pleaded guilty to the crime of
possession of methamphetamine with intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B). In his plea agreement, M r. Contreras-Ramos
waived his right to appeal his sentence. On August 8, 2005, he was sentenced to
70 months in prison. M r. Contreras-R amos timely appealed his sentence. His
counsel filed an Anders brief and moved to withdraw as counsel. See Anders v.
California, 386 U.S. 738 (1967). The brief cited the defendant’s appeal waiver as
the reason he had no substantial basis for appeal. M r. Contreras-Ramos did not
submit a brief. The government also declined to submit a brief but submitted a
letter on April 13, 2006, stating that: “[t]he United States agrees with Appellant’s
counsel that this appeal is clearly barred by the appeal waiver signed by
Contreras-Ramos as part of his plea agreement and that this appeal is, therefore,
frivolous.” R. Doc. 34 at 1. The question in this case is whether the
government’s letter is sufficient to invoke the defendant’s appellate w aiver.
A defendant’s waiver of the right to appeal may itself be waived by the
government. In United States v. Clark, 415 F.3d 1234 (10th Cir. 2005), this Court
refused to enforce a defendant’s waiver of the right to appeal because the
government “neither filed a motion to enforce [the defendant’s] plea agreement,
nor argued in its brief that we should dismiss [the defendant’s] appeal on the
basis of her appellate rights waiver.” Id. at 1238 n.1 (internal citation omitted).
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The preferred procedure for invocation of an appeal waiver is for the government
to file a motion under Tenth Circuit Rule 27.2(A)(1), or to argue the waiver issue
in its brief. But in United States v. Calderon, 428 F.3d 928, 930-31 (10th Cir.
2005), we observed that “the government is accorded flexibility in the form of its
request for enforcement of an appeal waiver,” and held that “the waiver is waived
when the government utterly neglects to invoke the waiver in this court.” Id. at
930-31.
In accordance with those precedents, we hold that where the government
explicitly cites an appeal waiver in a letter to the Court in response to an Anders
brief, the waiver is not waived and must be enforced if it meets the requirements
of United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004). In its letter to
the Court declining to file a brief, the government explicitly stated that “this
appeal is clearly barred by the appeal waiver signed by Contreras-Ramos as part
of his plea agreement.” R. Doc. 34 at 1. That is sufficient.
Because the government has successfully invoked its rights under the plea
agreement, the waiver of appellate rights is enforceable if M r. Contreras-Ramos
knowingly and voluntarily agreed to the waiver. See United States v. Hernandez,
134 F.3d 1435, 1437 (10th Cir. 1998) (“A defendant’s knowing and voluntary
waiver of the statutory right to appeal his sentence is generally enforceable.”)
The Sentencing Hearing reflects that M r. Contreras-Ramos understood that he had
waived his right to appeal. His counsel stated, “M y advice to him was that unless
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the court gave him a statutorily illegal sentence, that there would not be an
appeal.” App. 28-29. Neither counsel nor M r. Contreras-Ramos has suggested
that the w aiver was not knowingly or voluntarily made. Therefore, M r.
Contreras-Ramos waived his right to appeal any issue within the scope of the
waiver.
M r. Contreras-Ramos’s plea agreement allows him to appeal a sentence
only under the following circumstances: (1) the sentence was imposed in violation
of law ; or (2) the sentence imposed was unreasonable in light of factors listed in
18 U.S.C. § 3553(a). The record demonstrates that the sentence imposed is lawful
and reasonable. M r. Contreras-Ramos’s Presentence Report established an
offense level of 27 and a guideline range of 70 to 87 months. His sentence was
70 months, at the low end of the range and not in excess of the statutory
maximum. This sentence is presumptively reasonable because it falls within the
guidelines range, see United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir.
2006), and M r. Contreras-Ramos has presented no reason why the district court
should have departed from the guidelines. Because there is no indication that the
sentence was unlaw ful or unreasonable, M r. Contreras-R amos w aived the right to
appeal his sentence.
Accordingly, we DISM ISS the appeal and GRANT counsel’s motion to
w ithdraw .
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