FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT
November 12, 2008
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-3243
(D.C. No. 2:07-CR-20135-CM-3)
ANTONIO P. CARRANZA, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, O’BRIEN and McCONNELL, Circuit Judges.
Antonio P. Carranza pleaded guilty to one count of conspiracy to possess
with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(B)(2). He sought a two-level decrease in his
offense level under Sentencing Guideline § 5C1.2 (the safety-valve provision).
The district court declined to apply the decrease, determining that he had not met
*
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 This order and judgment is not binding precedent, except under the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.
§ 5C1.2(a)(5)’s requirement that he be truthful in providing information to the
government. After Mr. Carranza appealed, the government moved to enforce his
plea-agreement waiver of his right to appeal his criminal sentence. We grant the
government’s motion and dismiss this appeal.
Analysis
In evaluating a motion to enforce, this court determines “(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
. . . .” United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc)
(per curiam).
Scope of the Waiver
The first issue is whether the appeal falls within the scope of the waiver.
“We narrowly construe the scope of [a defendant’s] waiver of appeal rights[,]
[b]ut we do not hesitate to hold a defendant to the terms of a lawful plea
agreement.” United States v. Sandoval, 477 F.3d 1204, 1206 (10th Cir. 2007)
(citation and quotation omitted). “[T]he text of the plea agreement is our guide.”
United States v. Anderson, 374 F.3d 955, 957 (10th Cir. 2004).
Mr. Carranza’s waiver is very broad:
Defendant knowingly and voluntarily waives any right to appeal or
collaterally attack any matter in connection with this prosecution,
conviction and sentence. The defendant is aware that Title 18,
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U.S.C. § 3742 affords a defendant the right to appeal the conviction
and sentence imposed. By entering into this agreement, the
defendant knowingly waives any right to appeal a sentence imposed
which is within the guideline range determined appropriate by the
Court. . . . In other words, the defendant waives the right to appeal
the sentence imposed in this case except to the extent, if any, the
Court departs upward from the applicable sentencing guideline range
determined by the Court.
Mot. to Enforce, Ex. 1 at 7-8. By its plain language, the waiver covers all
sentencing issues, including the denial of the safety-valve adjustment.
Mr. Carranza argues that during plea negotiations the government agreed to
“leave the safety valve issue open,” Aplt. Resp. at 2 (emphasis and quotation
omitted), and that by doing so, the government agreed that the appeal waiver
would not cover his safety-valve arguments. We are not convinced that an
agreement to leave the safety-valve issue open for the district court to decide also
constituted an agreement that the issue was excepted from the general appellate
waiver. But in any event, Mr. Carranza’s interpretation cannot succeed because it
contradicts the plain language of the waiver. See United States v. Porter, 405
F.3d 1136, 1142-43 (10th Cir. 2005) (rejecting defendant’s interpretation of an
appellate waiver because the interpretation contradicted the plea agreement’s
plain language); see also Mot. to Enforce, Ex. 1 at 9-10 (acknowledging that the
written plea agreement contains the entirety of the parties’ agreement).
Mr. Carranza also argues that, unlike other cases before this court, the plea
agreement does not contain language “specifically includ[ing] the waiver of the
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court’s determination of contested sentencing matters.” Aplt. Resp. at 2. Thus,
he concludes, the waiver cannot cover his safety-valve issue. Given the broad
reach of the waiver to which he actually agreed, however, the government was not
required also to include specific language regarding contested sentencing matters.
Mr. Carranza’s appeal issue is included within the scope of his waiver, and
therefore the first Hahn factor is satisfied.
Knowing and Voluntary Nature
The second question is whether Mr. Carranza’s waiver was knowing and
voluntary. In evaluating this question, this court examines the plea agreement
and the plea colloquy. See Hahn, 359 F.3d at 1325.
The plea agreement waiver paragraph acknowledges that the waiver is
knowing and voluntary. Mot. to Enforce, Ex. 1 at 7-8. In addition, the paragraph
immediately before the signature block acknowledges that Mr. Carranza read the
agreement and agrees that its terms embody the parties’ agreement, and that he is
pleading guilty “freely and voluntarily.” Id. at 9-10.
During the plea colloquy, the court specifically addressed the appeal waiver
and established that Mr. Carranza has read the waiver paragraph and reviewed it
with his attorney. The court confirmed that he knew and understood that he was
relinquishing “[his] right to appeal anything that has to do with [his] prosecution,
conviction, and sentence,” and that “by entering into this plea agreement, [he is]
giving up that right to appeal.” Id., Ex. 2 at 18. The court also confirmed that the
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acceptance of the appeal waiver in particular, and the plea agreement as a whole,
was voluntary. Id. at 18-19, 20.
Mr. Carranza bears the “burden to present evidence from the record
establishing that he did not understand the waiver.” United States v. Edgar, 348
F.3d 867, 872-73 (10th Cir. 2003). He argues that his waiver was not knowing
and voluntary because he was under the impression that he could appeal a denial
of the safety-valve adjustment. As stated above, this contention flies in the face
of the plain language of the plea agreement. It also contradicts the plea colloquy
before the district court. “Solemn declarations in open court carry a strong
presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Mr. Carranza has failed to fulfill his burden of presenting evidence establishing
he did not understand the waiver, and accordingly the second Hahn factor is
satisfied.
Miscarriage of Justice
The third and final question is whether enforcing the waiver would result in
a miscarriage of justice. A “miscarriage of justice” in this context can be
established only in four situations: “[1] where the district court relied on an
impermissible factor such as race, [2] where ineffective assistance of counsel in
connection with the negotiation of the waiver renders the waiver invalid,
[3] where the sentence exceeds the statutory maximum, or [4] where the waiver is
otherwise unlawful.” Hahn, 359 F.3d at 1327 (quotation omitted). To be
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“otherwise unlawful” under Hahn, “the error must seriously affect the fairness,
integrity or public reputation of judicial proceedings as that test was employed in
United States v. Olano, 507 U.S. 725, 732 . . . (1993).” Hahn, 359 F.3d at 1327
(alterations and quotation omitted).
Mr. Carranza argues that it would be a miscarriage of justice to allow the
government to lead him to believe he could appeal the denial of the safety-valve
provision and then to accept its argument that the general waiver covers this
issue. This appears to be an argument that the waiver is “otherwise unlawful.”
We disagree. If Mr. Carranza believed the parties had agreed that the
safety-valve issue was appealable, he should not have signed a plea agreement
containing a broad waiver and then agreed with the court’s colloquy concerning
that waiver. He could, and should, have ensured that the waiver included a
specific exception for the safety-valve analysis. The waiver was not “otherwise
unlawful,” and none of the other “miscarriage of justice” factors are argued.
Thus, the third Hahn factor is satisfied.
Conclusion
The motion to enforce is GRANTED, and this appeal is DISMISSED.
ENTERED FOR THE COURT
PER CURIAM
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