FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 13, 2007
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-3261
(D.C. No. 06-CR-40130-JAR)
GENARO ESPINOZA, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, McCONNELL, and GORSUCH, Circuit Judges.
Defendant Genaro Espinoza pled guilty, pursuant to a plea agreement, to
one count of possession of 10.01 kilograms (24 pounds) of cocaine hydrochloride
with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Mr. Espinoza had
been charged in a two-count indictment but agreed to plead guilty to Count 2 in
return for the dismissal of Count 1. The district court sentenced Mr. Espinoza to
*
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 This order and judgment is not binding precedent, except under the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.
135 months’ imprisonment, three years’ supervised release, and the payment of a
$100 special assessment. Although his sentence was within the statutory range
and the plea agreement waived any right to appeal a sentence within the statutory
range, Mr. Espinoza filed this appeal. Thereafter, the government moved to
enforce the plea agreement under United States v. Hahn, 359 F.3d 1315 (10th Cir.
2004) (en banc) (per curiam). Mr. Espinoza has responded that the motion should
be denied because he did not understand that his sentence would be determined on
the basis of the offense conduct charged in the dismissed Count 1, as well as the
conduct in Count 2. He reasons that “[i]f he did not understand the relevant
conduct portion of the plea agreement, it follows that he did not understand the
appeal waiver, either.” Resp. to Mot. for Enfcmt. of Plea Agrmt. at 2. As
discussed below, we grant the government’s motion and dismiss the appeal.
In Hahn, 359 F.3d at 1325, this court held that “in reviewing appeals
brought after a defendant has entered into an appeal waiver,” this court will
determine “(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.” A miscarriage of justice will result if (1) “the district
court relied on an impermissible factor such as race”; (2) “ineffective assistance
of counsel in connection with the negotiation of the waiver renders the waiver
invalid”; (3) “the sentence exceeds the statutory maximum”; or (4) “the waiver is
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otherwise unlawful.” Id. at 1327 (quotation omitted). For an “otherwise
unlawful” waiver, the error must seriously affect the fairness, integrity, or public
reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725, 732
(1993); Hahn, 359 F.3d at 1327.
The government’s motion to enforce addresses each of the three Hahn
factors. Mr. Espinoza, however, opposes the motion based only on the second
factor. Thus, we need only address whether the waiver was knowing and
voluntary. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005)
(recognizing each Hahn factor need not be addressed if defendant does not make
argument with respect to that factor).
In determining whether Mr. Espinoza’s waiver of his right to appeal 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 was “an adequate Federal Rule of Civil Procedure 11 colloquy.”
Hahn, 359 F.3d at 1325. Mr. Espinoza bears the “burden to present evidence
from the record establishing that he did not understand the waiver.” Id. at 1329
(quotation omitted).
Mr. Espinoza fails to meet his burden. The plea agreement fully set forth
the factual basis for the plea. It stated that he understood that the maximum term
of imprisonment was not less than ten years, nor more than life imprisonment,
a $4 million fine, a $100 mandatory special assessment, and not less than five
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years of supervised release, Plea Agrmt. at 1, and that there had been no promises
or representations as to what sentence the district court would impose, id. at 4.
The plea agreement further stated that Mr. Espinoza “knowingly and voluntarily
waives any right to appeal or collaterally attack any matter in connection with this
prosecution, conviction and sentence . . . except to the extent, if any, the court
departs upwards from the applicable sentencing guideline range determined by the
court.” Id. at 6.
Specifically with regard to Mr. Espinoza’s relevant conduct, the agreement
stated that “both the United States and the defendant understand that the conduct
charged in any dismissed counts of the indictment is to be considered as well as
all other uncharged related criminal activity as relevant conduct for purposes of
calculating the offense level for Count 2.” Id. at 2-3. Mr. Espinoza signed the
agreement after acknowledging that he had read it and understood it, and that he
was entering into the agreement because he was guilty and that he was doing so
freely and voluntarily. Id. at 8.
Likewise, at the plea colloquy, Mr. Espinoza indicated that he understood
the rights he was waiving and the terms of the plea agreement and that he was
pleading guilty voluntarily. Tr. of Change of Plea Hr’g at 5-8. He stated that
he had reviewed the plea agreement with his attorney and understood that he
was giving up his rights to appeal. Id. at 5,7. The court specifically explained to
Mr. Espinoza that the court would consider the quantity and type of drugs he had
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possessed in arriving at a sentence. The court expressly stated that the quantity
“would include the quantity of drugs in Count 2 of the indictment to which you’re
pleading guilty; but it would also include the quantity of drugs in Count 1.”
Id. at 13 (emphasis added). Mr. Espinoza indicated that he understood this and
also understood that the greater the quantity of drugs determined to be in his
possession, the longer the sentence would be. Id. at 14. Again, the court
explained to Mr. Espinoza that it would “be looking at everything you did in this
case,” and Mr. Espinoza indicated that he understood. Id. at 15.
Nothing in the record suggests that Mr. Espinoza did not knowingly and
voluntarily enter into the plea agreement. He presents no record evidence
showing that he did not understand the waiver. See United States v. Edgar,
348 F.3d 867, 872-73 (10th Cir. 2003). “A mere silent record does not satisfy
this burden.” Id. at 873.
Knowledge of the specific claims of error in sentencing is not a prerequisite
for a knowing waiver of the right to appeal the sentence. Hahn, 359 F.3d at 1326.
In deciding whether a waiver is knowing and voluntary, the focus is on the “right
relinquished” rather than on the “prospective result of the sentencing proceeding.”
Id. Therefore, Mr. Espinoza’s inability to know what the district court would do
at sentencing has no bearing on whether he knowingly and voluntarily entered
into the waiver. Accordingly, based on the language of the plea agreement and
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his reaffirmation of the plea agreement’s provisions during the Rule 11 colloquy,
we conclude Mr. Espinoza knowingly and voluntarily waived his right to appeal
his sentence. We therefore GRANT the government’s motion to enforce the plea
agreement and DISMISS the appeal.
ENTERED FOR THE COURT
PER CURIAM
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