FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 23, 2007
Elisabeth A. Shumaker
FO R TH E TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 07-3218
(D.C. No. 07-CR-10051-W EB)
ULY SSES (D . Kan.)
HERNA ND EZ!M AR TINEZ,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, EBEL, and M cCO NNELL, Circuit Judges.
Defendant Ulysses Hernandez-M artinez pled guilty to one count of misuse
of a Social Security number and one count of aggravated identity theft. He was
sentenced to thirty-six months in prison. Although his plea agreement contained
a waiver of his appeal rights, M r. Hernandez-M artinez subsequently filed an
appeal challenging his sentence. The government has moved to enforce 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 This order and judgment is not binding precedent, except under the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.
appeal waiver under 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.” 359 F.3d at 1325.
M r. Hernandez-M artinez concedes that his appeal falls within the scope of the
waiver of his appellate rights and he does not argue that enforcing the waiver
would result in a miscarriage of justice. He asserts, however, that he did not
know ingly and voluntarily waive his appellate rights.
In determining whether a waiver of appellate rights is knowing and
voluntary, we look primarily at two factors: (1) “whether the language of the plea
agreement states that the defendant entered the agreement knowingly and
voluntarily” and (2) whether there is “an adequate Federal Rule of Criminal
Procedure 11 colloquy.” Id.
There is no dispute regarding the language of the plea agreement.
M r. Hernandez-M artinez’s signed 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 sentence.” M ot., Att. A at 5.
Further, the plea agreement states that
-2-
the defendant acknowledges that he has had the plea agreement read
to him, understands it and agrees it is true and accurate and not the
result of any threats, duress or coercion . . . . The defendant
acknowledges that the defendant is entering into this agreement and
is pleading guilty because the defendant is guilty and is doing so
freely and voluntarily.
Id. at 7.
As to the second factor, M r. Hernandez-M artinez argues that the district
court failed to give a proper Rule 11 plea colloquy. The relevant portion of Rule
11 states that
the court must address the defendant personally in open court.
During this address, the court must inform the defendant of, and
determine that the defendant understands, the following:
...
the terms of any plea-agreement provision waiving the right to appeal
or to collaterally attack the sentence.
Fed. R. Crim. P. 11(b)(1)(N). During the plea hearing, the district court had
defense counsel summarize the plea agreement, see M ot., Att. B at 18-22, but the
district court did not review the appeal waiver provision with
M r. H ernandez-M artinez or ask him whether he understood the waiver.
In United States v. Edgar, 348 F.3d 867, 871 (10th Cir. 2003), we 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.”
Because M r. Hernandez-M artinez failed to raise this Rule 11 issue in the district
court, “we review any alleged error under the plain error standard of Fed. R.
-3-
Crim. P. 52(b).” Id. Under the plain error standard, there must be an actual error
that is plain or obvious and affects substantial rights. Id.
As in Edgar, the district court’s failure to discuss
M r. Hernandez-M artinez’s waiver of appellate rights was actual error that was
plain or obvious. See id. at 871-72. The question then is whether the error
affected substantial rights. “An error affects substantial rights where the error
was prejudicial, that is, if it affected the outcom e of the district court
proceedings.” Id. at 872 (quotation omitted). In the context of appellate waivers,
a defendant shows prejudice by presenting evidence that the waiver was not
knowing and voluntary. Id. at 872.
M r. Hernandez-M artinez contends that his waiver was not knowing and
voluntary because (1) he explained at his change of plea hearing that he is not a
native English speaker and only speaks or understands a “‘bit of English,’” Resp.
at 5 (quoting M ot., Att. B at 5); (2) he has no formal education, id.; and (3) the
record shows that he did not understand the appeal waiver because he stated
during the sentencing hearing that he was going to keep fighting his case after
sentencing, id. These contentions are inconsistent with
M r. Hernandez-M artinez’s signed plea agreement and his testimony at the plea
hearing.
As set forth above, M r. Hernandez-M artinez signed his plea agreement,
which included the appeal waiver and his acknowledgement that he “had the plea
-4-
agreement read to him, understands it and agrees it is true and accurate and not
the result of any threats, duress or coercion.” M ot., Att. A at 7. At the plea
hearing, an interpreter was available for him to use. See id., Att. B. at 1-2. After
he told the court that he could only speak a little bit of English, the court asked:
“W ell, do you understand what I’m asking you now?” and he said “yes.” Id. at 5.
He did not ask to use the interpreter during the hearing and he at no point
informed the court that he did not understand what was going on during the
hearing. At the end of the plea hearing, after the plea agreement had been
summarized in open court, the district court and M r. Hernandez-M artinez had the
following exchange:
THE COURT: Now, you listen to me carefully. Are you offering
your plea of guilty with a full understanding of all the matters set
forth in the information in this petition, in your plea agreement, and
in the certificate of your attorney?
THE DEFENDANT: Yes.
THE COURT: Is there anything about it that you don’t understand?
THE DEFENDANT: No.
THE COURT: Then I ask you again, do you swear that you read,
understood, discussed with your attorney every part of the petition to
plead guilty, your plea agreement, and your answer to those
documents, and your answers to me now are true and correct; is that
right?
THE DEFENDANT: That is correct.
-5-
Id., Att. B. at 26. Finally, M r. Hernandez-M artinez’s statement during his
sentencing hearing that he was “going to continue fighting this, just not in this
court,” was apparently made in reference to his alleged plans to go to the United
Nations so that “the whole country [can] know what everyone’s doing here.” Id.,
Att. C at 6-7. These remarks do not affirmatively show that he did not knowingly
and voluntarily enter into his appeal waiver.
Because M r. Hernandez-M artinez failed to present evidence from the
record to dispute his own written and verbal assertions, we conclude that the
waiver w as knowing and voluntary. See Edgar, 348 F.3d at 873. Accordingly,
the district court’s failure to discuss the appeal waiver during the plea colloquy
did not affect M r. Hernandez-M artinez’s substantial rights, and the plain error
standard has not been met in this case.
The government’s motion to enforce the plea agreement is GRANTED and
the appeal is DISM ISSED.
ENTERED FOR THE COURT
PER CURIAM
-6-