United States v. Leyva-Matos

FILED
United States Court of Appeals
Tenth Circuit

September 21, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 09-2304
WILMER LEYVA-MATOS,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 2:08-CR-2410-MV-2)

Paul J. Rubino, Las Cruces, New Mexico, for Defendant-Appellant.

John M. Pellettieri (Kenneth J. Gonzales, United States Attorney, and Stephen H.
Wong, Assistant United States Attorney, Albuquerque, New Mexico; and Lanny
A. Breuer, Assistant Attorney General, and Greg D. Andres, Acting Deputy
Assistant Attorney General, Washington, D.C., with him on the brief), United
States Department of Justice, Washington, D.C., for Plaintiff-Appellee.

Before KELLY, BALDOCK, and HARTZ, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Wilmer Leyva-Matos pleaded guilty to possessing marijuana with

intent to distribute in violation of 21 U.S.C. § 841(a)(1) and conspiring to possess

marijuana with intent to distribute in violation of 21 U.S.C. § 846. In his plea
agreement, Defendant waived his right to appeal. The district court rejected certain

stipulations in Defendant’s plea agreement and sentenced him to twenty-six months

imprisonment, followed by two years of supervised release. Defendant appeals,

alleging the district court improperly considered certain information he provided the

Government with the understanding that it would not be used against him. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See United States v.

Hahn, 359 F.3d 1315, 1322, 1324 (10th Cir. 2004) (en banc) (holding that we have

jurisdiction under 28 U.S.C. § 1291 over sentencing appeals “even when the

defendant has waived his right to appeal in an enforceable plea agreement”).

Because we conclude Defendant’s appellate waiver is valid and enforceable, we

dismiss this appeal without addressing the merits.

I.

In 2008, Border Patrol agents stopped Defendant and co-defendant Viktor

Elizalde at a checkpoint on Interstate 10 west of Las Cruces, New Mexico. During

a consensual search of the vehicle, Border Patrol agents discovered an unloaded

handgun in the vehicle’s center console and 26.2 kilograms of marijuana hidden

behind the car’s trim panels. They also discovered ammunition for the handgun in

Elizalde’s bag. Elizalde waived his Miranda rights and admitted the gun was his.

Further investigation revealed the car belonged to Defendant’s parents.

After a New Mexico grand jury returned an indictment against Defendant for

one count of possessing marijuana with intent to distribute in violation of 21 U.S.C.

2
§ 841(a)(1) and one count of conspiring to possess marijuana with intent to distribute

in violation of 21 U.S.C. § 846, Defendant entered into an agreement to plead guilty

to both charges. He also agreed to provide information about the crimes with which

he and Elizalde were charged in exchange for the Government’s promise that it

would not use any of the information he provided against him. See U.S.S.G. § 1B1.8

(providing that “[w]here a defendant agrees to cooperate with the government by

providing information concerning unlawful activities of others, and as part of that

cooperation agreement the government agrees that self-incriminating information

provided pursuant to the agreement will not be used against the defendant, then such

information shall not be used in determining the applicable guideline range, except

to the extent provided in the agreement”). In the plea agreement, the Government

agreed to certain stipulations that, if accepted by the district court, would reduce the

range of Defendant’s sentence under the Sentencing Guidelines. The Government

also stated, however, that it did not agree to recommend a specific sentence nor to

support, oppose, or not oppose any sentence proposed by the Defendant. See Fed.

R. Crim. P. 11(c). Additionally, Defendant waived his appeal rights and agreed that

the district court could accept or reject the stipulations in its discretion. The plea

agreement provides:

The United States and the defendant understand that the above
stipulations are not binding on the Court and that whether the Court
accepts these stipulations is a matter solely within the discretion of the
Court after it has reviewed the presentence report. The defendant
understands and agrees that if the Court does not accept any one or

3
 more of the above stipulations, the defendant hereby waives the right
to appeal the Court’s rejection of such stipulations.

R. Vol. 1 at 11 (emphasis added). A section titled “Waiver of Appellate Rights” also
provides:

The defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C. § 3742
afford a defendant the right to appeal a conviction and the sentence
imposed. Acknowledging that, the defendant knowingly waives the right
to appeal this conviction and/or any sentence within the statutory
maximum authorized by law. In addition, the defendant agrees to waive
any collateral attack to this conviction and/or sentence pursuant to 28
U.S.C. § 2255, except on the issue of ineffective assistance of counsel.

Id. at 11–12 (emphasis added).

At the sentencing hearing, the district court accepted certain stipulations in the

plea agreement but rejected others. The court’s calculations resulted in an offense

level of 16. With Defendant’s criminal history category of I, the Guidelines range

calculated by the district court was twenty-one to twenty-seven months

imprisonment. The court then considered the factors in 18 U.S.C. § 3553(a),

focusing on the disparity between the mandatory five years imprisonment Elizalde

faced for his gun possession conviction and Defendant’s Guidelines range, and

imposed a sentence of twenty six months, followed by two years of supervised

release. 1 On appeal, Defendant contends the district court improperly used

1
Neither party disputes the validity of the plea agreement, but the district
court does not appear to have explicitly accepted or rejected it. The magistrate judge
who conducted the Fed. R. Crim. P. 11 plea colloquy accepted Defendant’s guilty
plea but said he would “defer acceptance of the plea agreement to the district court.”
At Defendant’s sentencing hearing, the district court never explicitly accepted or
(continued...)

4
information Defendant provided to aid in the Government’s prosecution of Elizalde

to calculate his sentence.

II.

We review de novo the question whether a defendant’s waiver of his appellate

rights in a plea agreement is enforceable. United States v. Ibarra-Coronel, 517 F.3d

1218, 1221 (10th Cir. 2008). The Government may raise this issue in its principal

brief, as it did in this appeal. Id. at 1221 n.3. In determining whether Defendant’s

appellate waiver is enforceable, we consider the three prongs outlined in Hahn: (1)

whether this appeal falls within the scope of Defendant’s waiver of his appellate

rights; (2) whether Defendant knowingly and voluntarily waived his appellate rights;

and (3) “whether enforcing the waiver would result in a miscarriage of justice.”

Hahn, 359 F.3d at 1325.

Defendant failed to file a reply brief and provided little analysis on the waiver

question at oral argument. When asked to explain why the appellate waiver should

not be enforced, Defendant’s counsel responded “that line of cases, Hahn, Porter, and

1
(...continued)
rejected the plea agreement but appears to have worked within its terms, discussing
which of the stipulations it would accept. In United States v. Smith, 500 F.3d 1206
(10th Cir. 2007), we concluded that when the district court operated within the terms
of the plea agreement by questioning the defendant about its terms during the Rule
11 colloquy and dismissing other counts, its actions amounted to constructive
acceptance of the plea agreement. Id. at 1213 n.3. Likewise, we conclude the
district court in the instant case constructively accepted the plea agreement by
working within its terms and accepting certain stipulations while rejecting others.

5
Shockey, allows for an exception to [the enforcement of appellate waivers], and I

respectfully submit we come underneath that exception.” When asked to elaborate

which exception applied here, counsel replied, “Miscarriage of justice is the one that

jumps out.” When asked, “How is there a miscarriage of justice?” counsel merely

responded, “Plain error,” then alleged that the district court committed plain error

when it “used information that was protected by the Kastigar debrief.” 2 We therefore

consider only the miscarriage of justice prong of the Hahn analysis.

Enforcement of an appellate waiver results in a miscarriage of justice only if

(1) “the district court relied on an impermissible factor such as race,” (2) counsel

provided ineffective assistance in connection with the negotiation of the waiver, (3)

“the sentence exceeds the statutory maximum,” or (4) the waiver itself is otherwise

unlawful. Id. at 1327 (internal quotations omitted). The district court does not

appear to have relied on an impermissible factor such as race in sentencing

Defendant. Nor does Defendant allege counsel provided ineffective assistance. At

his Rule 11 hearing, Defendant acknowledged that the maximum statutory penalties

for his offense are up to five years in prison, a fine of $250,000, two years of

supervised release, and a $100 special penalty assessment. Defendant’s sentence of

2
Both parties refer to Defendant’s meetings with the Government as “Kastigar
briefings.” See Kastigar v. United States, 406 U.S. 441 (1972). The agreement to
keep confidential the information Defendant shared at these meetings seems to be
properly made under § 1B1.8. We are unsure why the parties describe these
briefings or debriefings as “Kastigar” debriefings.

6
twenty six months and two years of supervised release per offense, to run

concurrently, does not exceed the statutory maximum. It appears Defendant’s

argument, then, is that enforcing the appellate waiver would result in a miscarriage

of justice because the waiver is “otherwise unlawful.”

An appellate waiver is “otherwise unlawful” only if it seriously affects “the

fairness, integrity or public reputation of judicial proceedings.” Hahn, 359 F.3d at

1327. “This exception looks to whether the waiver is otherwise unlawful, not to

whether another aspect of the proceeding may have involved legal error.” United

States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007) (internal citations and

quotations omitted). “An appeal waiver is not ‘unlawful’ merely because the

claimed error would, in the absence of waiver, be appealable. To so hold would

make a waiver an empty gesture.” United States v. Sandoval, 477 F.3d 1204, 1208

(10th Cir. 2007).

When faced with appellate waivers like the one in this case, we have

consistently applied this principle and enforced such waivers accordingly. In United

States v. Porter, 405 F.3d 1136 (10th Cir. 2005), the defendant pleaded guilty but

appealed his sentence, contending, among other things, that United States v. Booker,

543 U.S. 220 (2005), entitled him to resentencing because the district court treated

the Sentencing Guidelines as mandatory. His plea agreement included a waiver of

his appellate rights, however, and we explained the relevant inquiry was not whether

the defendant’s “sentence is unlawful in light of Booker’s remedial holding, but

7
whether subsequent changes in the law render his appeal waiver itself

unenforceable.” 405 F.3d at 1144. We dismissed the appeal, concluding Booker did

not compel us to hold that the defendant’s waiver was unlawful and that enforcing

the waiver did not “seriously affect the fairness, integrity, or public reputation

of . . . judicial proceedings.” Id. at 1145. Again, in United States v. Shockey, 538

F.3d 1355 (10th Cir. 2008), the defendant’s plea agreement included an appellate

waiver. The defendant nonetheless appealed, alleging his sentence was ambiguous

and inherently contradictory and arguing that enforcing his appellate waiver in such

a situation would result in a miscarriage of justice. Id. at 1356. We noted that our

precedent foreclosed such an argument; despite the “inscrutable” nature of the

defendant’s sentence, “enforcement of his plea agreement’s appellate waiver would

not render the waiver itself unlawful.” Id. at 1357. Thus, we dismissed the

defendant’s appeal. Id. at 1358.

Likewise, nothing in this case indicates that the waiver itself is unlawful.

Defendant bears the burden to demonstrate that enforcing the waiver would result in

a miscarriage of justice, and he has not done so. 3 United States v. White, 584 F.3d

3
In criticizing the majority opinion, the dissent makes much of the
Government’s promise not to use the information Defendant provided against him.
The dissent argues the Government breached its promise by giving this information
to the district court. The dissent further argues this action “taint[ed] the district
judge,” and that we should, therefore, remand for resentencing before a different
judge. Dissent at 5.
The Government submitted a § 5K1.1 motion in this case, requesting a
(continued...)

8
935, 948 (10th Cir. 2009). We reject counsel’s invitation to consider whether the

merits of Defendant’s appeal reveal plain error. Because we conclude Defendant’s

waiver of his right to appeal his sentence is enforceable, we dismiss Defendant’s

appeal.

3
(...continued)
downward departure for Defendant’s substantial assistance. When the district court
requested the information Defendant provided, the Government appropriately
submitted it in accordance with § 1B1.8(b)(5). This provision specifically states:

The provisions [restricting the Government’s use of the protected
information in determining the applicable guideline range] shall not be
applied to restrict the use of information: . . . in determining whether,
or to what extent, a downward departure from the guidelines is
warranted pursuant to a government motion under § 5K1.1 (Substantial
Assistance to Authorities).

U.S.S.G. § 1B1.8(b)(5). The Government did not attempt to use this information
against Defendant. Consequently, the Government did not breach any agreement it
made with Defendant.
Additionally, Defendant did not raise the argument the dissent crafts. Rather,
Defendant explained in his brief at page nine: “Application note 1 [to § 1B1.8]
clarifies that ‘This provision does not authorize the government to withhold
information from the court but provides that self-incriminating information obtained
under a cooperating agreement is not to be used to determine the defendant’s
guideline range.’” Defendant then argued: “This provision requires a sentencing
court to honor the government’s promise that self-incriminating information
volunteered by the defendant under a cooperation agreement would not subject a
defendant to a harsher sentence.” At oral argument, when asked why he did not
object to the Government’s providing this information to the district court, defense
counsel responded: “Well, your honor, as I understand the law, the judge can ask for
that information, and the Government can’t say ‘I’m not going to give it to you.’”
Thus, Defendant himself acknowledges the Government did not breach any promise
merely by providing protected information to the district court. Nor was the district
court irremediably tainted by considering Defendant’s protected information because
it is permitted to consider such information when evaluating a § 5K1.1 motion.

9
APPEAL DISMISSED.

10
09-2304 - United States v. Leyva-Matos

HARTZ, Circuit Judge, dissenting:

I respectfully dissent. The government breached its promise to Mr. Leyva-

Matos when it disclosed to the district court what he had said in his post-plea

debriefings. The district court then used what he said to increase his offense level

under the United States Sentencing Guidelines, and sentenced him accordingly. I

would hold that the government’s breach frees Mr. Leyva-Matos from his promise

not to appeal his sentence. I would then hold that the use by the district court of

Mr. Leyva-Matos’s debriefings requires that we set aside his sentence and remand

for resentencing by another judge.

Mr. Leyva-Matos executed his plea agreement on February 10, 2009, and

was debriefed on February 27 and June 22. The agreement contemplated that he

would provide information to the government. It states:

If the defendant meets all of the criteria set forth at 18 U.S.C.
§ 3553(f) and U.S.S.G. § 5C1.2, including providing a complete and
truthful statement to the Government concerning all information and
evidence the defendant has about the offense or offenses that were
part of the same course of conduct underlying this agreement, the
defendant is entitled to a reduction of two (2) levels, pursuant to
U.S.S.G. § 2D1.1(b)(11).

R., Vol. 1 at 11.

The written agreement does not include a provision that Mr. Leyva-Matos’s

statements could not be used against him. But there is no question that the

government so promised. The government’s answer brief in this court says: “In

accordance with Kastigar v. United States, 406 U.S. 441 (1972), the government
agreed not to use the information Leyva-Matos provided at the debriefings in any

criminal case against him.” Aplee. Br. at 6. (Kastigar held that the government

can compel testimony from an unwilling witness if the witness is conferred

immunity from use of the compelled testimony in later criminal proceedings.)

The brief refers to a postsentencing letter sent on December 4, 2009, by the

prosecutor to Mr. Leyva-Matos’s attorney. That letter ends: “[W]e unequivocally

affirm that when we met with Mr. Leyva-Matos we did not intend for the

information from his debriefings to be used against him at sentencing, absent an

extenuating circumstance not present in this case.” Unopposed Motion to

Supplement the Record on Appeal, Ex. B, United States v. Leyva-Matos,

No. 09-2304 (10th Cir. filed May 15, 2010). The letter was in response to a

request from Mr. Leyva-Matos’s attorney for a copy of the Kastigar agreement.

The letter explained that “although we did have an understanding regarding the

use of information provided by your client during the debriefs, we never reduced

an agreement to writing.” Id.

Because of the government’s promise, the district court should not have

been informed of what Mr. Leyva-Matos said in his debriefings. In United States

v. Shorteeth, 887 F.2d 253, 257 (10th Cir. 1989), this court interpreted USSG

§ 1B1.8 to “require the [plea] agreement to specifically mention the court’s

ability to consider defendant’s disclosures during debriefing in calculating the

appropriate sentencing range before the court may do so.”

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 Nevertheless, the debriefing statements were disclosed to the district court.

Before the sentencing hearing the court conducted a telephone status conference

with the prosecutor and defense counsel. During the conference the court

requested investigator notes and reports of Mr. Leyva-Matos’s debriefings. The

court may well have assumed that it was entitled to review the debriefings

because § 1B1.8(b)(5) states that debriefing information can be used “in

determining whether, or to what extent, a downward departure from the guidelines

is warranted pursuant to a government motion under § 5K1.1 (Substantial

Assistance to Authorities).” Paragraph (b)(5) was added to the guidelines in

1992, after Shorteeth. In any event, neither counsel objected, and the materials

were provided to the court.

At Mr. Leyva-Matos’s sentencing hearing on November 9, 2009, however,

the district court relied on his debriefing statements for purposes other than to

determine whether a § 5K1.1 departure was warranted. It found, contrary to the

stipulations in the plea agreement, that several enhancements should be applied to

Mr. Leyva-Matos’s offense level under the guidelines. For example, the court

said:

First, with respect to the enhancement for possession of the weapon,
Mr. Leyva-Matos admitted . . . . These admissions are sufficient to
support a two-level enhancement for possession of a dangerous
weapon during a drug trafficking offense pursuant to Section
2D1.1(b)(1).

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R., Vol. 4 at 32–33. 1

Mr. Leyva-Matos’s attorney did not object at the hearing to the district

court’s use of his debriefing statements. On November 18, however, his attorney

filed an “Unopposed Motion to Reconsider” on the ground that the court had

“improperly used information provided by the Defendant pursuant to his plea

agreement and pursuant to his Kastigar debriefing to determine the applicable

guideline range, to deny the stipulations in the plea agreement and to deny the

government’s downward departure motion.” (footnote omitted). United States v.

Leyva-Matos, No. CR-08-2410-MV, Doc. 109 at 1 (D.N.M. November 18, 2009).

(Contrary to this statement in the motion, the district court granted the

government’s downward-departure motion under § 5K1.1.) The government did

not object to the motion on the ground of untimeliness or file a response. On

November 30 the district court entered a judgment on Mr. Leyva-Matos’s

sentence. Two months later the court entered an order denying the motion.

Addressing the merits of Mr. Leyva-Matos’s motion, the court ruled that even if

the debriefing statements were privileged, “the Court finds ample support for

Mr. Leyva-Matos’s sentence without consideration of the information he provided

in his debriefing sessions with the government.” Id., Doc. 123 at 6 (January 27,

2010).

1
I have deleted the specific admissions so that a new judge conducting the
sentencing would not be tainted by the information.

-4-
 Putting aside for a moment the procedural issues on appeal, this seems to

me to be a clear case for reversal: The government breached its promise to

Mr. Leyva-Matos that his debriefing statements could not be used against him.

Those statements were provided to the district court and used by the district court

to enhance his offense level at the time of sentencing. This court’s practice has

been that when the prosecution taints the district judge by making a presentation

in violation of its agreement with the defendant, we must reverse the sentence and

remand for resentencing by another judge, even though there has been no

misconduct by the sentencing judge herself, and even if the sentence imposed

would have been a perfectly justified and reasonable one in the absence of the

taint. See United States v. Cachucha, 484 F.3d 1266, 1271 (10th Cir. 2007); see

also United States v. Foster, 889 F.2d 1049, 1055–56 (11th Cir. 1989) (breach of

promise not to use debriefing statements). Because sentencing is an exercise of

judicial discretion, it is impossible to know if the taint affected the judge’s

decision making.

I now turn to the procedural issues which could bar relief for Mr. Leyva-

Matos. First, in his plea agreement he waived his right to appeal his sentence.

But his promise not to appeal is not binding if the government first broke its

promise to him. As we have said, “‘[A]n appellate waiver is not enforceable if

the Government breaches its obligations under the plea agreement.’” United

States v. Trujillo, 537 F.3d 1195, 1200 (10th Cir. 2008), quoting United States v.

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Rodriguez-Rivera, 518 F.3d 1208, 1212 (10th Cir. 2008). I am not aware of any

case in which we have held that an appeal waiver bars the defendant from raising

on appeal the contention that the government breached its obligations under a plea

agreement. Not only should this result follow from considerations of contract

law, but to rule otherwise would be a manifest miscarriage of justice. To be sure,

Mr. Leyva-Matos’s attorney has done a poor job of raising this point on appeal, as

the majority opinion clearly describes. But the burden is on the government, as

the movant, to establish that the appeal should be dismissed. In my view, it has

not satisfied its burden.

Even if this appeal is allowed, however, there is a second potential

procedural barrier. Mr. Leyva-Matos did not raise a timely objection to the

disclosure of his debriefing statements to the judge. He did, however, raise an

objection several days after sentencing; and the district court rejected the

objection on the merits, not on the ground that it was untimely. Ordinarily, we do

not hold on appeal that an objection was untimely if the opposing party did not

object on the ground of timeliness and the district court did not dispose of the

tardy objection on that ground. See Eberhart v. United States, 546 U.S. 12, 19

(2005) (per curiam) (“where the Government failed to raise a defense of

untimeliness until after the District Court had reached the merits, it forfeited that

defense”); Hicks v. Franklin, 546 F.3d 1279 (10th Cir. 2008) (the state forfeited

its right to object to untimely objection to magistrate judge’s report). I do not

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wish to minimize the importance of making timely objections. Mr. Leyva-

Matos’s attorney should have objected when the district court requested the

debriefing statements, although he may have assumed that USSG § 1B1.8(b)(5)

overrode the government’s promise, at least so long as the district court used the

statements only in considering the motion under USSG § 5K1.1. 2 (He also should

have objected at sentencing; but by that time the judge had been tainted, so

resentencing by another judge would have been required regardless.) On the

other hand, the failure to object is perhaps less culpable than usual because the

court’s request was on the telephone, the prosecutor should also have objected,

and any objection by defense counsel (as opposed to the prosecutor) would have

implicitly informed the court that the debriefing statements could be harmful to

Mr. Leyva-Matos at sentencing. In any event, I think that this is an appropriate

case to address the merits of Mr. Leyva-Matos’s claim, rather than awaiting a

possible habeas claim of ineffective assistance of counsel.

I am disappointed that my colleagues on this panel disagree with my views.

But I am much more disappointed in the government. It appears to acknowledge

2
It seems to me that if a district court wishes to review debriefing materials in
considering a § 5K1.1 motion, it should not review them until it has made its
findings on all other factual matters disputed at sentencing. Only then can one be
confident that the materials did not affect those findings. Otherwise the
government’s promise that the defendant’s debriefing statements will not be used
against him at sentencing will be a promise of questionable value, and—perhaps
more importantly—defense counsel will be reluctant to advise clients to agree to
such debriefings.

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that it breached its promises to Mr. Leyva-Matos. I would have hoped that rather

than challenging his appeal, it would have confessed error. Such a confession

would not have injured its relationship with the judge below, because the error

was solely the government’s.

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