FILED
United States Court of Appeals
Tenth Circuit
April 19, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-2311
(D.C. No. 2:09-CR-02386-JAP-1)
MARIO TORRES-CAMPOS, (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, EBEL, and TYMKOVICH, Circuit Judges.
Mario Torres-Campos pled guilty to being an alien who illegally re-entered
the United States after having been deported after conviction of a felony in
violation of 8 U.S.C. § 1326(a) and (b). 1 Under the terms of his plea agreement,
he waived his right to appeal his conviction and any sentence within 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 This order and judgment is not binding precedent, except under the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.
1
The sentencing transcript indicates that Mr. Torres-Campos has four felony
and twenty misdemeanor convictions, has a prior illegal reentry conviction, and
has been deported four times.
applicable advisory guidelines range determined by the district court. The court
imposed a sentence of twenty-one months of imprisonment, which was at the
bottom of the undisputed guidelines range of twenty-one to twenty-seven months.
Despite the appeal waiver in the plea agreement, Mr. Torres-Campos appealed.
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). For the reasons
stated below, we grant the 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.” Id. at 1325. The miscarriage-of-justice
prong requires the defendant to show that (a) “the district court relied on an
impermissible factor such as race”; (b) “ineffective assistance of counsel in
connection with the negotiation of the waiver render[ed] the waiver invalid”;
(c) his “sentence exceed[ed] the statutory maximum”; or (d) his appeal “waiver is
otherwise unlawful.” Id. at 1327 (quotations omitted). The government’s motion
addresses all three prongs of the Hahn test, and explains why Mr. Torres-Campo’s
appeal waiver is not undermined.
In response to the government’s motion, Mr. Torres-Campos’s counsel
stated that under Anders v. California, 386 U.S. 738 (1967), this appeal is
frivolous. We provided Mr. Torres-Campos copies of the government’s motion to
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enforce and counsel’s response and gave him the opportunity to argue why this
appeal should be heard despite his appeal waiver. In his response, which we
liberally construe, see Haines v. Kerner, 404 U.S. 519, 520 (1972), he makes
several jurisdictional arguments: (1) he is not subject to the law because he is not
a United States citizen; (2) under the Treaty of Guadalupe Hidalgo and the
Gadsden Purchase Treaty, the district court lacked jurisdiction; (3) the district
court lacked subject matter jurisdiction; and (4) the government has not filed an
acceptance of jurisdiction as is required by the Assimilated Crimes Act. He also
contends that counsel promised to file an appeal.
Although a guilty plea does not waive jurisdictional objections to a
conviction, United States v. Fields, 516 F.3d 923, 928 (10th Cir. 2008), we can
easily conclude that the jurisdictional arguments Mr. Torres-Campos raises are
meritless. Congress has plenary power to pass laws controlling the admission and
exclusion of aliens. See Kleindienst v. Mandel, 408 U.S. 753, 765-67 (1972).
That power includes the power to pass criminal laws imposing penalties upon
persons who enter the United States unlawfully. See United States v.
Hernandez-Guerrero, 147 F.3d 1075, 1076-78 (9th Cir. 1998) (holding Congress
did not exceed its constitutional authority in enacting § 1326). Further, the
district court has subject-matter jurisdiction over “all offenses against the laws of
the United States” under 18 U.S.C. § 3231, including the offense at issue in this
case. As Mr. Torres-Campos himself recognizes, the Treaty of Guadalupe
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Hidalgo of 1848 involved land ceded by Mexico to the United States. See, e.g.,
New Mexico v. Aamodt, 537 F.2d 1102, 1105 (10th Cir. 1976); United States v.
Gardner, 107 F.3d 1314, 1317 (9th Cir. 1997). This treaty and the Gadsden
Purchase Treaty of 1853 guaranteed that the United States would respect property
rights of Mexicans located within the ceded land. See Tee-Hit-Ton Indians v.
United States, 348 U.S. 272, 288 n.20 (1955). Neither, however, concerns
federal-court jurisdiction over criminal charges against aliens. Because
Mr. Torres-Campos was not convicted under the Assimilated Crimes Act, that Act
is irrelevant to the question of jurisdiction.
Mr. Torres-Campos may be arguing that his counsel was ineffective for not
filing an appeal. But counsel did file the appeal. Based upon our review of the
transcripts of the plea and sentencing hearings and the plea agreement,
Mr. Torres-Campos has not met his burden of showing ineffective assistance of
counsel in connection with the negotiation of the appeal waiver or otherwise
demonstrated that the waiver is invalid. See Hahn, 359 F.3d at 1327. Not only is
Mr. Torres-Campos’s objection about his counsel’s performance insufficient to
demonstrate a miscarriage of justice in general, to the extent that his objection
survives his plea waiver at all, it would not be a basis for an appeal, but rather
only for a possible motion for collateral review under 28 U.S.C. § 2255. See
United States v. Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005) (holding
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that claims of ineffective assistance of counsel should be brought in collateral
proceedings, and not on direct appeal).
The government’s motion to enforce the appeal waiver is GRANTED, and
the appeal is DISMISSED.
ENTERED FOR THE COURT
PER CURIAM
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