F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
February 8, 2007
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,
Plaintiff-Appellee,
v. No. 06-3195
JO SE FRAN CISC O SER RA N O
LEO N ,
Defendant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF KANSAS
(D.C. No. 04-CR-20127-JW L)
Submitted on the motion and briefs: *
Tricia A. Tenpenny, Bath & Edmonds, P.A., Overland Park, Kansas, for
Defendant-Appellant.
Eric. F. M elgren, United States Attorney, M arietta Parker, Assistant United States
Attorney, Kansas City, Kansas, for Plaintiff-Appellee.
Before H E N RY, O’BRIEN, and M cCO NNELL, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
the motion and appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
PE R C U RIA M .
Defendant Jose Francisco Serrano Leon pleaded guilty to one count of
aiding and abetting the interstate communication of a threat in violation of
18 U.S.C. § 875(c) and 18 U.S.C. § 2. He did so pursuant to a plea agreement
that included a waiver of his right to appeal his conviction and sentence.
Nevertheless, defendant has filed a notice of appeal challenging the district
court’s denial of his motion to withdraw his guilty plea, its upward adjustment for
obstruction of justice, and its addition of two criminal history points pursuant to
United States Sentencing Guideline § 4A1.1(d). The government has filed a
motion to enforce the plea agreement. W e grant the motion and dismiss the
appeal.
I.
Defendant entered in his plea agreement on February 1, 2005. In his plea
agreement, defendant stated that he:
knowingly and voluntarily waives any right to appeal or collaterally
attack any matter in connection with this prosecution, conviction and
sentence. The defendant is aware that Title 18, U.S.C. § 3742
affords a defendant the right to appeal the conviction and sentence
imposed. 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. . . . 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 upward
from the applicable sentencing guideline range determined by the
court.
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R. Vol. I, Doc. 51, at 6.
This court will enforce a criminal defendant’s waiver of his right to appeal
so long as the following three elements are satisfied: (1) “the disputed appeal
falls within the scope of the w aiver of appellate rights,” (2) the defendant’s
waiver of his appellate rights was knowing and voluntary, and (3) enforcing the
waiver w ill not result in a miscarriage of justice. United States v. Hahn, 359 F.3d
1315, 1325 (10th Cir. 2004) (en banc) (per curiam). The government’s motion to
enforce addresses each of the three Hahn factors. Defendant opposes the motion
only on the second factor: that he did not knowingly and voluntarily waive the
right to appeal his guilty plea. Thus, we need not address the first and third
factor. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir.) (recognizing
that each Hahn factor need not be addressed if defendant does not make argument
with respect to that factor), cert. denied, 126 S. Ct. 550 (2005).
Defendant’s counsel filed a response to the motion to enforce stating her
belief that there are no meritorious grounds upon which defendant can urge denial
of the government’s motion to enforce the appeal waiver. See Anders v.
California, 386 U.S. 738, 744 (1967) (authorizing counsel to request permission
to withdraw where counsel conscientiously examines a case and determines that
an appeal would be w holly frivolous). Under Anders, counsel must submit a brief
to his client and this court indicating any potential grounds for appeal based on
the record. Id. The defendant may choose to submit arguments to the court in
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response. Id. If we conclude after a full examination of the record that the
appeal is frivolous, we may grant counsel’s motion to withdraw and dismiss the
appeal. Id. Pursuant to Anders, defendant’s counsel stated in her brief that it was
defendant’s contention that his guilty plea was not made knowingly and
voluntarily. Because of the possibility that this court’s decision on the
government’s motion to enforce would be dispositive, counsel chose not to file a
motion to w ithdraw at this time. At this court’s request, defendant filed a pro se
response in which he claimed that he was going through serious mental anguish at
all times during the criminal proceedings against him and was not mentally
competent during his guilty plea. Under Anders, we have conducted an
independent review and examination.
II.
“Case law makes clear that an appeal of a denial of a motion to withdraw a
guilty plea is an attempt to contest a conviction on appeal and thus falls within
the plain language of [an appeal] waiver provision.” United States v. Elliott,
264 F.3d 1171, 1174 (10th Cir. 2001) (quotation omitted). Although the
defendant in Elliott was not challenging the validity of his appeal waiver under
any of the three exceptions recognized in Hahn and its precedent, United States v.
Cockerham, 237 F.3d 1179, 1182 (10th Cir. 2001), that distinction does not
change the conclusion that, if found to be valid following consideration of the
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Hahn factors, the appeal waiver forecloses a defendant’s appeal of a denial of a
motion to withdraw the plea agreement.
W e turn, then, to defendant’s claim that his appeal waiver is invalid
because he did not knowingly or voluntarily enter the plea agreement or its appeal
waiver. On M ay 2, 2005, several months after entering his guilty plea and on the
date scheduled for his sentencing hearing, defendant apparently attempted suicide.
The sentencing hearing was postponed, and the court ordered defendant to
undergo a psychiatric evaluation. In September 2005, defendant filed a motion to
replace his counsel, which was granted. On January 30, 2006, almost one year
after entering his guilty plea, defendant filed a motion to withdraw his plea.
In this motion, defendant claimed that he had no memory of his plea hearing and
was innocent. He claimed that shortly before the plea hearing, he came to believe
he had HIV/AIDS because the prison corrections officer in charge of the
infirmary told him so. He claimed this made him so despondent that he wished to
die, and he decided to plead guilty so he could die in jail. Defendant stated he
now knew he did not have HIV/AIDS and, therefore, wished to withdraw his plea.
The district court held an evidentiary hearing on the motion. After
considering the evidence and addressing the factors identified by this court as
relevant to the consideration of motions to withdraw guilty pleas, see United
States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993), it denied the motion. The
district court first found that defendant’s assertion that he thought he had
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HIV/AIDS at the time of the plea hearing was not credible. R. Vol. I, Doc. 82,
at 6. It noted that defendant admitted that he did not attempt to confirm this
information with a doctor or nurse and never told anyone in his family. Id. at 6-7;
see also R. Vol. III, Doc. 94 (Plea Withdrawal Hr’g Tr.), at 6-7. The court noted
that defendant did not request medication for HIV/AIDS, even though he
frequently requested medications and other medical assistance in jail, and that
there is no record of defendant reporting, being tested for, or seeking or obtaining
treatment for HIV/AIDS while in jail. R. Vol. I, Doc. 82, at 6-7; R. Vol. III,
Doc. 94, at 17-18, 24-27.
Next, the district court review ed the results of defendant’s psychiatric
evaluation. It noted that one of the evaluating psychiatrists stated that defendant
had reported “little in the w ay of believable symptomology,” that defendant’s
answers to questions were so vague, inconsistent and useless as to be of no
validity, and it was his opinion that defendant was malingering and demonstrating
apparent “con-artistry.” R. Vol. I, Doc. 82, at 7-9; Gov’t Reply dated Dec. 4,
2006, Ex. 3 (Psychiatric Report), at 6, 7, 9, 10, 13-14. The court noted the
psychiatrist’s conclusion that defendant’s claim to have no memory of the plea
hearing was simply not credible because of the incompatibility between
defendant’s description of his purported memory deficits and legitimate
impairment. R. Vol. I, Doc. 82, at 8; Psychiatric Report, at 13-14. The court also
noted the psychiatrist’s conclusion that defendant was competent at the time of
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the plea hearing and was clearly competent to proceed with the case. R. Vol. I,
Doc. 82, at 8; Psychiatric Report, at 13-14. The court described the findings of a
second psychiatrist, who also concluded that defendant was malingering when he
claimed memory deficits because defendant’s answers to questions and test scores
were so far below the average of moderately severe brain-damaged individuals
that he believed defendant’s responses w ere consistent with someone trying to
fake impairment. R. Vol. I, Doc. 82, at 9; Psychiatric Report, at 17. This
psychiatrist also concluded that defendant was competent.
The district court next reviewed defendant’s plea agreement and detailed
plea colloquy. Defendant acknowledged in the plea agreement that he had
sufficient time to discuss the agreement with his attorney, had read the agreement,
agreed it was not entered into as a result of threat, duress or coercion, and that he
was entering into the agreement freely, voluntarily and because he was guilty.
R. Vol. I, Doc. 51, at para. 15. Further, at the plea hearing, the district court
carefully reviewed with defendant the provisions of the plea agreement and the
rights that he was waiving as a result of pleading guilty. Defendant testified that
he had never been treated for any mental illness or addiction to narcotics that
would render him incompetent. R. Vol. II, D oc. 85 (Plea Hr’g Tr.), at 6.
Defendant informed the court that he was taking insulin and Prozac, but told the
court that he did not believe these drugs caused him to be unable to understand
the plea agreement. Id. at 7. He testified that he had been able to work with his
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attorney, that he and his counsel had fully discussed the guilty plea, and he was
fully satisfied with his representation. Id. at 7-8. The charges against defendant
were read aloud, the sentencing possibilities were explained to him in detail, and
the terms of the plea agreement were described paragraph-by-paragraph. Id.
at 10-11, 13-18, 19-22, 23-25.
Defendant pleaded guilty, and the court explained each of the constitutional
rights he was waiving by doing so. Id. at 11-13. The district court explained the
appellate waiver at length, defendant asked some questions and then stated that he
understood and wanted to agree to this waiver. Id. at 25-29. Defendant stated
that he was entering his guilty plea freely and voluntarily and only because he
was guilty, that he had not been threatened or coerced and he had not been
promised anything in order to induce his guilty plea. Id. at 29. He stated that he
understood the charges against him, was admitting his guilt, and had committed
the acts set forth in the plea agreement. Id. at 13. He informed the court that he
understood the range of punishment that was applicable and how the sentence
would be determined. Id. at 13-15, 15-17, 23-25. Further, he informed the court
that he understood the consequences of entering a plea, including his waiver of
various constitutional rights, and the waiver of his right to appeal or collaterally
attack the sentence imposed. Id. at 11-13, 25-28.
Before ruling on defendant’s motion to withdraw his plea agreement, the
district court also considered defendant’s assertion that he was innocent of the
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charged offense. It noted defendant’s admissions that he had intentionally
fabricated a false death threat against two police officers by a third-party,
knowing that there was no such threat, with the intention of incriminating the
third-party. Because defendant admitted all of the elements of the charged
offense and did not provide any evidence supporting a cognizable defense, the
district court rejected his claim of actual innocence. Accordingly, the district
court found that defendant had competently, knowingly and voluntarily entered
into his plea agreement and it denied defendant’s motion to withdraw the plea.
III.
In making the determination of whether defendant’s w aiver of his right to
appeal his conviction was knowingly and voluntarily made, we consider “whether
the language of the plea agreement states that the defendant entered the agreement
knowingly and voluntarily” and whether there was “an adequate Federal Rule of
Civil Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. Defendant bears the
“burden to present evidence from the record establishing that he did not
understand the waiver.” Id. at 1329 (quotation omitted). Defendant fails to meet
his burden.
As noted above, the plea agreement fully set forth the factual basis for the
plea, and it included a broad waiver that defendant “knowingly and voluntarily
waives any right to appeal or collaterally attack any matter in connection with this
prosecution, conviction and sentence.” R. Vol. I, Doc. 51, at para. 10. M oreover,
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also as noted above, at the plea colloquy, defendant testified that he was
competently, knowingly, freely, and voluntarily entering his plea and waiving his
constitutional rights, including his right to appeal. See Blackledge v. Allison,
431 U.S. 63, 74 (1977) (“Solemn declarations in open court [affirming a plea
agreement] carry a strong presumption of verity. The subsequent presentation of
conclusory allegations unsupported by specifics is subject to summary dismissal,
as are contentions that in the face of the record are w holly incredible.”).
Furthermore, the evidence presented at the evidentiary hearing held in
connection with the motion to withdraw the plea demonstrates that the defendant
was mentally competent at the time of the plea hearing, and knowingly and
voluntarily entered into the plea agreement. Defendant has presented no evidence
demonstrating that he did not knowingly and voluntarily enter his plea or waive
his appellate rights as part of that plea. His assertion that he was having such
serious mental psychological and psychiatric issues that he was rendered
incompetent at the time of the plea hearing is not supported by any evidence, but
rather is contradicted by the psychiatric evaluations, described above. Based on
this record, we conclude that defendant knowingly and voluntarily waived his
right to appeal. Therefore, defendant’s appeal, including his appeal of the district
court’s ruling on the motion to withdraw his plea, is foreclosed by his appeal
waiver. Elliott, 264 F.3d at 1174.
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W e GRANT the government’s motion to enforce the plea agreement and
DISM ISS the appeal. The mandate shall issue forthwith.
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