F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 3, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-4270
(D.C. No. 2:06-CR-472-PGC)
DA RIO O RTIZ-GO NZA LEZ, (D . Utah.)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, M U RPH Y, and M cCO NNELL, Circuit Judges.
On August 22, 2006, defendant Dario Ortiz-Gonzalez pled guilty to one
count of illegal reentry in violation of 8 U.S.C. § 1326. Pursuant to a written plea
agreement between Ortiz-Gonzalez and the United States, Ortiz-Gonzalez
“voluntarily and expressly waive[d] [his] right to appeal any sentence imposed
upon [him], and the manner in which the sentence is determined, on any of the
*
This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
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 This order and judgment is not binding precedent, except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
grounds set forth in Title 18, United States Code, Section 3742 or on any ground
whatever,” except he did not waive his right to appeal a sentence “above the
maximum penalty provided in the statutes of conviction,” which was stated to be
twenty years, “or an upward departure above the high end of the Guideline range
as determined by the Court to apply to [him] and the facts of [his] case.” Stmt.
by Def. in Advance of Plea, ¶ 10(a) at 3 (filed Aug. 22, 2006). At the change of
plea hearing, the district court specifically questioned Oritz-Gonzalez about his
understanding of the appeal waiver, and ultimately accepted the plea, finding that
it was knowing and voluntary. 1
W hen the presentence report was prepared, defense counsel objected to the
calculation of Ortiz-Gonzalez’s criminal history score because she contended that
certain of his prior state court misdemeanor convictions had been obtained
without the benefit of counsel and that those uncounseled convictions should not
be counted in calculating his criminal history score. At the outset of the
sentencing hearing, the district court discussed the matter with the parties and
defense counsel noted that a case with similar facts was currently on appeal to the
Tenth Circuit, N o. 06-4032, United States v. Sanchez. The district court
1
Other provisions in the plea agreement included that Ortiz-Gonzalez would
not file a motion for departure or variance from the guidelines, would agree to
reinstatement of a previous order of removal, and would not illegally reenter the
country, and that the United States, in turn, would recommend that he receive a
two-level reduction in the total offense level for participation in the fast-track
program.
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continued the hearing so that both parties could have an opportunity to brief the
issue; the court also requested from defense counsel copies of all the appellate
briefs in the Sanchez case.
The sentencing hearing reconvened on October 18, 2006, at which time the
parties presented the court an addendum to the plea agreement. The parties also
added the following language to the addendum to reflect their agreement about
the outstanding sentencing issue: “the government will not enforce this appeal
waiver with respect to the uncounseled prior convictions if U.S. v. Sanchez, now
before the 10th Circuit is reversed.” Addendum to Stmt. of Def. in Advance of
Plea, ¶ 4(a) at 2 (filed Oct. 18, 2006). Both counsel indicated they were satisfied
with this additional language. The court then questioned Ortiz-Gonzalez about
his understanding of the change to the plea agreement.
Q: And you have already pled guilty. Do you understand that our
purpose this morning is to add some additional provisions into
the plea agreement between you and the government?
A: Yes, sir.
Q: Do you understand that the new agreement that you’re entering
into indicates that you cannot appeal any sentence that I might
impose and that you’re not going to file a motion for a
departure or a variance from the guideline range. The only
limitation is that you get the right to appeal what I’ll call the
Sanchez issue. That is an issue up in front of the Tenth Circuit
right now about how to add up criminal history points. But
that is the only narrow appeal you’re going to be allowed to
take and only if Sanchez comes out in favor of M r. Sanchez?
A: Yes, sir.
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Q: And then if you do that for the government, they’re going to
do something for you. They’re going to recommend that you
get tw o levels off your criminal history score, I’m sorry, two
levels off the guideline calculation for going into a fast-track
program. Do you understand that is what you’re going to get
out of this arrangement?
A: Yes, sir.
Q: All right. W ould you like to sign the addendum to the plea
agreement at this time?
Tr. of Sentencing Hr’g at 7 (Oct. 18, 2006). The district court then accepted the
addendum to the plea agreement, finding that Ortiz-Gonzalez entered it
know ingly and voluntarily with a full awareness of his rights.
Following its acceptance of the addendum to the plea agreement, the
district court proceeded with sentencing. The court heard argument on the
allegedly uncounseled prior convictions and found that Ortiz-Gonzalez had not
presented enough evidence to overcome the presumption of regularity. See, e.g.,
United States v. Cruz-Alcala, 338 F.3d 1194, 1197 (10th Cir. 2003). The court
therefore determined that Ortiz-Gonzalez’s criminal history category was properly
calculated at a category V, and that his offense level should be 19, taking into
account the two-level reduction for his participation in the fast-track program.
That produced an advisory guideline range, the low end of which was 57 months.
The court expressed its intent to sentence Ortiz-Gonzalez to the low end of the
guideline range and both defense counsel and the United States concurred with
that assessment. The court then imposed a sentence of 57 months’ incarceration,
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followed by two years’ supervised release. The court waived the fine but
imposed a $100 special assessment and required as a special condition that
Ortiz-Gonzalez not reenter the United States illegally.
Ortiz-Gonzalez filed a timely notice of appeal. He has raised two issues on
appeal: 1) that the district court erred in relying on several of his prior
misdemeanor convictions to calculate his criminal history category because those
convictions were obtained in violation of his right to counsel; and 2) that the
district court could not rely on any prior convictions to enhance his sentence
unless the prior convictions were charged in the indictment. On April 19, 2007, a
panel of this court issued a decision in United States v. Sanchez, No. 06-4032,
2007 W L 1153757, at *3-*5 (10th Cir. Apr. 19, 2007) (unpublished), affirming
M r. Sanchez’s sentence on the ground that he had not presented sufficient
evidence to overcome the presumption of regularity with respect to any of his
prior convictions. The United States then filed a M otion to Enforce Plea
Agreement in the present case pursuant to United States v. Hahn, 359 F.3d 1315
(10th Cir. 2004) (en banc) (per curiam).
Under Hahn, we consider “(1) whether the disputed appeal falls within the
scope of the waiver of appellate rights; (2) whether the defendant knowingly and
voluntarily waived his appellate rights; and (3) whether enforcing the waiver
would result in a miscarriage of justice.” Id.
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To prove that enforcement of an appellate waiver would result
in a miscarriage of justice, a defendant must establish at least one of
four circumstances: (1) reliance by the court on an impermissible
factor such as race in the imposition of the sentence; (2) ineffective
assistance of counsel in connection with the negotiation of the
waiver; (3) the sentence exceeds the statutory maximum; or (4) the
waiver is otherwise unlawful and seriously affects the fairness,
integrity, or public reputation of judicial proceedings.
United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005).
In its motion, the United States contends that Ortiz-Gonzalez knowingly
and voluntarily waived his right to appeal, that the issues raised by
Ortiz-Gonzalez are within the scope of that waiver, that this court’s affirmance of
the Sanchez case released the United States from its conditional promise not to
enforce the appeal waiver, and that enforcing the appeal waiver would not result
in a miscarriage of justice.
In response, Ortiz-Gonzalez concedes that he entered the plea and appeal
waiver knowingly and voluntarily and that the issues raised on appeal fall within
the scope of the appeal waiver. He argues, however, that we should not enforce
the waiver because, unlike in Sanchez, the record here affirmatively shows that he
was denied the right to counsel in his prior convictions and allow ing those
convictions to be used against him in calculating his sentence would result in a
miscarriage of justice. He also contends that his appeal raises important
constitutional issues not yet resolved by the United States Supreme Court,
“namely the rights to notice, an indictment, and a jury trial when enhancing
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sentences for illegal reentry.” M em. in O pp’n to M ot. to Enforce Plea Agrmt.
at 1.
Ortiz-Gonzalez’s arguments that enforcement of the appeal waiver will
result in a miscarriage of justice are misdirected because they focus on whether
his sentence was unlaw ful, not on whether the waiver was unlaw ful. As w e held
in Porter, “[t]he relevant question . . . is not whether [defendant’s] sentence is
unlawful . . . , but whether . . . his appeal waiver itself [is] unenforceable.”
405 F.3d at 1144. Ortiz-Gonzalez has not addressed any argument to the critical
issue of whether his appeal waiver itself was unlawful, much less shown that
enforcement of the waiver would seriously affect the fairness, integrity, or public
reputation of the judicial proceedings. The sentence the district court imposed
complied with the terms of the plea agreement and with the understanding of the
plea Ortiz-Gonzalez expressed at the change of plea hearing and again at the
hearing on the addendum to the plea agreement.
The motion of the United States to enforce the plea agreement is
GRANTED and the appeal is DISM ISSED. The mandate shall issue forthwith.
ENTERED FOR THE COURT
PER CURIAM
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