FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 11, 2016
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-6192
(D.C. No. 5:14-CR-00178-F-2)
DAVID VALENZUEL VILLANUEVA, (W.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
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David Valenzuel Villanueva pleaded guilty to possession of cocaine with
intent to distribute, 21 U.S.C. § 841(a)(1), and illegal reentry into the United States,
8 U.S.C. § 1326(a). His plea agreement included a broad waiver of “his right to
appeal his guilty plea, and any other aspect of his conviction,” as well as “his
sentence as imposed by the Court . . . and the manner in which the sentence [was]
determined” so long as the sentence was not “above the advisory Guideline range
determined by the Court.” Mot. to Enforce, Att. 1 (Plea Agreement) at 7. The
*
This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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.
district court determined the applicable guideline range to be 57-71 months in prison,
and the court sentenced Mr. Villanueva to 71 months’ imprisonment. Nevertheless,
Mr. Villanueva filed a notice of appeal.1
The government has since filed a motion to enforce the plea agreement
pursuant to our decision in United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)
(en banc) (per curiam). In response, Mr. Villanueva’s attorney filed a brief
indicating that there are no non-frivolous issues to be raised on appeal. See Anders v.
California, 386 U.S. 738, 744 (1967). Consequently, defense counsel requested
permission to withdraw. Although counsel certified that he provided copies of his
Anders brief and motion to withdraw to Mr. Villanueva, he did not state what steps, if
any, he took to ensure that Mr. Villanueva could understand the implications of those
materials, given record indications that Mr. Villanueva is a “Spanish-speaker,” Mot.
to Enforce, Att. 2 (Change of Plea Tr.) at 5; see id., Att. 3 (Sent. Tr.) at 3-4. We
therefore directed counsel to supplement his motion to withdraw to comply with the
requirements of 10th Cir. R. 46.4(b)(1) and United States v. Cervantes, 795 F.3d
1189, 1190 (10th Cir. 2015).
Tenth Circuit Rule 46.4(b)(1) provides that when counsel files an Anders brief
in an appeal involving a non-English speaking defendant, counsel must state in his
motion to withdraw that he has made reasonable efforts to explain to the defendant
1
Mr. Villanueva’s docketing statement does not identify any specific issue to
be raised on appeal; he indicates only that he wishes to raise “[a]ny issue which
becomes apparent upon a review of the record.” Dkt. Stmt. at 5.
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the substance of his Anders brief in a language the defendant can understand, using
an interpreter if necessary. And in Cervantes, we held that
at a minimum, counsel should make reasonable efforts to contact the
defendant in person or by telephone, with the aid of an interpreter if
necessary, to explain to the defendant the substance of counsel’s Anders
brief, the defendant’s right to oppose it, and the likelihood that the brief
could result in dismissal of the appeal. Of course, written notice of the
foregoing, in a language understood by the client, would also suffice.
795 F.3d at 1190 (brackets, ellipsis, and internal quotation marks omitted).
Following our directive, defense counsel filed a supplemental response
indicating that he had since retained a Spanish translation and interpretation firm to
translate written correspondence from counsel to Mr. Villanueva. In the translated
correspondence, counsel explained to Mr. Villanueva the nature of his Anders brief,
Mr. Villanueva’s right to oppose the argument contained in the brief, and the
likelihood that the brief could result in dismissal of Mr. Villanueva’s appeal.
Counsel also provided Mr. Villanueva with the address of this court, should he
choose to file a pro se response. Counsel mailed this translated correspondence to
Mr. Villanueva on February 25, 2016. We subsequently afforded Mr. Villanueva an
opportunity to file a pro se response to the government’s motion to enforce,
see Anders, 386 U.S. at 744, but to date he has not done so. Thus, with the time for
filing a responsive pleading having now passed, we turn to the merits of the appeal.
In accord with our obligations under Anders, we have reviewed the motion to
enforce and the record, and we conclude that Mr. Villanueva’s proposed appeal falls
within the scope of the appeal waiver. Also, the record indicates that Mr. Villanueva
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knowingly and voluntarily waived his appellate rights and that enforcing the appeal
waiver would not result in a miscarriage of justice. See Hahn, 359 F.3d at 1325
(stating factors to be considered in determining whether to enforce an appeal waiver).
Accordingly, we grant the motion to enforce the appeal waiver, grant counsel’s
motion to withdraw, and dismiss this appeal.
Entered for the Court
Per Curiam
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