FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 19, 2007
Elisabeth A. Shumaker
FO R TH E TENTH CIRCUIT Clerk of Court
UNITED STATES OF AM ERICA,
Plaintiff-A ppellee,
v. No. 07-2103
(D.C. No. 06-CR-2331-JB)
GERVACIO (D . N.M .)
ALVARADO-BENJUM E,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before L UC ER O, HA RTZ, and HO LM ES, Circuit Judges.
Gervacio Alvarado-Benjume pleaded guilty to being an illegal alien who
reentered the United States after having been convicted of an aggravated felony in
violation of 8 U.S.C. §§ 1326(a)(1), (a)(2), and (b)(2). He was sentenced to 21
months’ imprisonment, at the low end of the advisory Guidelines range. His plea
agreement contains a waiver of appeal rights. M r. Alvarado-Benjume has
*
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 This order and judgment is not binding precedent, except under the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.
appealed, and the government has moved to enforce the appeal waiver under
United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).
M r. Alvarado-Benjume’s counsel filed a response to the government’s
motion stating that “[u]ndersigned counsel has carefully reviewed this matter and
can find no basis for an appeal of the sentence imposed.” Resp. at 2. Counsel
indicated that
[i]t is the position of M r. Alvarado-Benjume that the 21 month
sentence imposed in this matter is unfair and too long for his
conviction . . . . It [is] further the position of M r. Alvarado-Benjume
that the twelve (12) level enhancement of offense level pursuant to
U.S.S.G. § 2L1.2.(b)(1)(B) based upon a prior felony Attempted Sale
of Narcotic D rugs conviction amounts to double punishment.
Resp. at 4. In light of his counsel’s response, we gave M r. Alvarado-Benjume the
opportunity to respond and show why this court should not enforce the waiver of
appellate rights. He did not respond. Having considered the government’s
motion and counsel’s response, we grant the government’s motion and dismiss the
appeal.
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.” 359 F.3d at 1325. The
miscarriage-of-justice prong requires the defendant to show (a) his sentence relied
on an impermissible factor such as race; (b) ineffective assistance of counsel in
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connection with the negotiation of the appeal waiver rendered the waiver invalid;
(c) his sentence exceeded the statutory maximum; or (d) his appeal waiver is
otherwise unlawful and the error “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. at 1327 (quotation omitted).
Within Scope of Waiver
M r. Alvarado-Benjume’s plea agreement states:
The Defendant is aware that federal law affords a Defendant the right
to appeal the sentence imposed. Acknowledging that, the Defendant
knowingly waives the right to appeal any sentence within the
applicable sentencing guideline range and imposed in conform ity
with this plea agreement. In addition, the Defendant agrees to waive
any collateral attack to the Defendant’s conviction pursuant to
28 U.S.C. § 2255, except on the issue of ineffective assistance of
counsel.
M ot., Attach. 1, at 4 (emphasis added). The issues M r. Alvarado-Benjume wishes
to appeal concern his sentence. The sentence was at the low end of the applicable
Guidelines range and there is no indication that it contravened any portion of the
plea agreement. Accordingly, the appeal falls within the scope of the waiver of
appellate rights.
Knowing and Voluntary Waiver
In determining whether M r. Alvarado-Benjume’s appeal waiver was made
knowingly and voluntarily, we consider “whether the language of the plea
agreement states that [he] entered the agreement knowingly and voluntarily” and
whether there is “an adequate Federal Rule of Criminal Procedure 11
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colloquy.” Hahn, 359 F.3d at 1325. M r. Alvarado-Benjume bears the “‘burden to
present evidence from the record establishing that he did not understand
the waiver.’” Id. at 1329 (quoting United States v. Edgar, 348 F.3d 867, 872-73
(10th Cir. 2003)).
The plea agreement appeal waiver states that M r. Alvarado-Benjume
“knowingly waives the right to appeal . . . .” M ot., Attach. 1 at 4. Further, the
plea agreement states that “[t]he Defendant agrees and represents that this plea of
guilty is freely and voluntarily made and not the result of force or threats or of
promises apart from those set forth in this plea agreement.” Id. at 5. And just
before the signature block, it states, “I have read this agreement and carefully
reviewed every part of it with my attorney in my native language. I understand
the charges, the penalties, and have fully discussed the case and my potential
defenses with my attorney. . . . I understand the agreement and voluntarily sign
it.” Id. Thus, the language of the plea agreement indicates that
M r. Alvarado-Benjume entered the agreement knowingly and voluntarily.
It appears, however, that the district court failed to address the appellate
waiver during the Rule 11 colloquy. The court advised M r. Alvarado-Benjume of
the various rights he would be giving up by pleading guilty, but it did not mention
the right to appeal, M ot., Attach. 2 at 12-13, and it did not otherwise address the
appellate waiver. The only reference to the waiver is the prosecutor’s statement,
in his summary of the plea agreement provisions, that “you have your potential
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penalties in H and then moving to paragraph five, page four, you have your
waiver of appeal rights and postconviction challenges to sentence.” Id. at 37-38.
But the district court’s failure to address the waiver during the Rule 11
colloquy does not necessarily mean that the waiver was not knowing and
voluntary. Federal Rule of Criminal Procedure 11(b)(1)(N) provides that “the
court must inform the defendant of, and determine that the defendant understands
. . . the terms of any plea-agreement provision waiving the right to appeal or to
collaterally attack the sentence.” This court has held that “it is always error for a
district court to fail to discuss an appellate waiver provision during a Rule 11
colloquy, although not always reversible error.” Edgar, 348 F.3d at 871. W here,
as here, the defendant did not raise the issue in the district court, we review the
error under the plain error standard. Id.
To notice plain error under Fed. R. Crim. P. 52(b), the error must (1)
be an actual error that was forfeited; (2) be plain or obvious; and (3)
affect substantial rights, in other words, in most cases the error must
be prejudicial, i.e., it must have affected the outcome. If all three
conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of the
judicial proceedings.
Id. (quotations and citation omitted).
As in Edgar, in this case there was an error that was obvious. See id. at
871-72 (citing Fed. R. Crim. P. 11(b)(1)(N)). It does not appear, however, that
the error affected substantial rights. “In the context of a plea agreement, an error
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is prejudicial if the defendant has shown that he would not have pleaded guilty if
the district court had complied with Rule 11(b)(1)(N).” Id. at 872. There is
nothing in the record to show that M r. Alvarado-Benjume would not have pleaded
guilty if the district court’s Rule 11 colloquy had adequately addressed the
appellate waiver. In addition to the plea-agreement evidence of a knowing and
voluntary waiver that we addressed above, at the colloquy M r. Alvarado-Benjume
testified that he was not threatened or forced to enter into the plea agreement and
there were no promises other than those contained in the plea agreement. M ot.,
Attach. 2 at 19. He stated that the plea agreement had been read to him in
Spanish, that his attorney had reviewed every paragraph of it with him, and that
he understood the charges against him and the possible penalties. Id. at 30, 34.
He testified that he signed the plea agreement freely and voluntarily. Id. at 35.
The prosecutor mentioned the appellate waiver in summarizing the terms of the
plea deal and defense counsel declined to take exception to the summarization or
call attention to any other aspect of the plea agreement. Id. at 38-39. Further, the
arguments that M r. Alvarado-Benjume apparently wishes to raise on appeal do not
contest the voluntariness of the plea; they concern only the calculation of his
sentence. W e conclude that the M r. Alvarado-Benjume’s substantial rights were
not affected by the deficient Rule 11 colloquy, and thus the plain-error standard
has not been met.
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There is no record evidence to dispute M r. Alvarado-Benjume’s written and
verbal assertions of a knowing and voluntary waiver, see Edgar, 348 F.3d at 873,
and thus we find that M r. Alvarado-Benjume’s waiver of his right to appeal was
knowing and voluntary.
M iscarriage of Justice
Finally, we consider whether enforcing the waiver would result in a
miscarriage of justice. Hahn, 359 F.3d at 1325. M r. Alvarado-Benjume’s
sentence did not exceed the statutory maximum and there is no indication that it
relied on an impermissible factor. There is no indication in this record that his
counsel was ineffective in connection with the negotiation of the waiver, and in
any event, ineffective-assistance of counsel claims usually are best addressed in
collateral proceedings. Finally, there is no indication that the w aiver is otherwise
unlawful.
The motion to enforce plea agreement is GRANTED and the appeal is
D ISM ISSED .
ENTERED FOR THE COURT
PER CURIAM
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