F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 6, 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. 07-3120
(D.C. No. 06-CR-20142-JW L)
JESSIE CHAVEZ-VARG AS, (D . Kan.)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before BR ISC OE, L UC ER O, and H ARTZ, Circuit Judges.
Defendant Jessie C havez-Vargas pled guilty to one count of conspiracy to
distribute and possess with intent to distribute methamphetamine in violation of
21 U.S.C. § 846. He was sentenced to 262 months in prison, which was at the
high end of the guideline range as determined by the court. His plea agreement
states that he “knowingly and voluntarily waives any right to appeal or
collaterally attack any matter in connection with this prosecution, conviction, and
*
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 This order and judgment is not binding precedent, except under the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.
sentence.” M ot., Ex. 1 at ¶10. The agreement further explains “[i]n other words,
the defendant waives his right to appeal the conviction in this case and waives the
right to appeal the sentence imposed in this case except to the extent, if any, the
Court departs upward from the applicable Guideline range determined by the
Court.” Id. M r. Chavez-Vargas appealed from his conviction and sentence and
the government has moved to enforce his appeal waiver under United States v.
Hahn, 359 F.3d 1315 (10th Cir. 2004). 1 W e grant the motion and dismiss the
appeal.
Under Hahn, we will enforce an appeal waiver if (1) “the disputed appeal
falls within the scope of the waiver of appellate rights”; (2) “the defendant
knowingly and voluntarily waived his appellate rights”; and (3) “enforcing the
waiver would [not] result in a miscarriage of justice.” Id. at 1325.
M r. Chavez-Vargas contends his appeal does not fall within the scope of his
appellate w aiver.
1
Tenth Circuit Rule 27.2(A)(3) provides that “[i]f possible,” a motion to
enforce a plea waiver “must be filed within 15 days after the notice of appeal is
filed.” Rule 27.2(A)(1)(d) requires that the government attach copies of the plea
agreement and transcripts of the plea hearing and sentencing hearing. The
government notes that it did not file its motion within fifteen days of the filing of
the notice of appeal as required by 10th Cir. R. 27.2(A)(3) because it was waiting
for the necessary transcripts to become available. The rule provides that a motion
may be filed out of time upon a showing of good cause. Id. Because the
governm ent filed its motion w ithin fifteen days after receiving the transcripts, w e
conclude that there was good cause for the government’s late filing.
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M r. Chavez-Vargas does not explain the nature of his appeal, but he argues
that his appeal does not fall within the scope of his appellate waiver because the
waiver is ambiguous. Although he acknowledges that the language from his plea
agreement quoted above is “admittedly quite plain,” he asserts that the following
language “casts ambiguity into the analysis.” Resp. at 3. That language states:
“‘The defendant is aware that Title 18, U.S.C. § 3742 affords a defendant the
right to appeal the conviction and sentence imposed.’” Id. (quoting M ot., Ex. 1 at
¶10). M r. Chavez-Vargas argues that “[a]lthough [he] has plainly and knowingly
waived his right to appeal under 18 U.S.C. § 3742, this Court could reasonably
find that the plea agreement’s silence on the question of whether [his] appeal
waiver includes a waiver of appeal rights under [28] U.S.C. [§] 1291 creates an
ambiguity which must be construed against the government.” Id. This argument
is frivolous. Section 1291 does not confer any substantive appellate rights upon
M r. Chavez-Vargas so there was nothing for him to waive; this provision simply
states that “courts of appeals . . . shall have jurisdiction of appeals from all final
decisions of the [federal] district courts.” 28 U.S.C. § 1291. The absence of
language in the plea agreement regarding § 1291 does not make
M r. Chavez-Vargas’ appellate waiver ambiguous.
Next, M r. Chavez-Vargas argues that a portion of the plea colloquy “could
be construed to contain ambiguity.” Resp. at 4. He contends that the following
language is ambiguous:
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Q. Bottom line of what you have done in Paragraph 10 [of the
plea agreement] is, for all intents and purposes, or certainly
more likely than not, whatever sentence this court gives you is
going to be the sentence you’re going to serve. Do you
understand?
A. Yes.
Id. at 4 (quoting M ot., Ex. 2 at 17). M r. Chavez-Vargas asserts that the district
court’s reference to “‘more likely than not,’” could be read to mean that his
appeal options are “limited but not completely foreclosed.” Id. He argues that
this ambiguity should be construed against the government and that this court
should find that his appeal does not fall w ithin the scope of his appellate waiver.
This argument is also frivolous. The plea agreement does contain two exceptions
that would allow M r. Chavez-Vargas to appeal his sentence: (1) if “the Court
departs upwards from the applicable Guideline range determined by the Court” or
(2) “if the United States exercises its right to appeal the sentence imposed as
authorized by Title 18, U.S.C. § 3742(b).” M ot., Ex. 1 at ¶ 10. Because of these
exceptions, the district court’s language that “more likely than not, whatever
sentence this court gives you is going to be the sentence you’re going to have
serve,” M ot., Ex. 2 at 17, is not ambiguous or inconsistent with the plea
agreement.
Because there was no ambiguity in the plea agreement or plea colloquy and
because this appeal does not fall within either of the two exceptions identified in
the plea agreement, we conclude that M r. Chavez-Vargas’ appeal falls within the
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scope of the w aiver of his appellate rights. Accordingly, the government’s
motion is GRANTED and the appeal is DISM ISSED. The mandate shall issue
forthwith.
ENTERED FOR THE COURT
PER CURIAM
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