NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 17, 2017*
Decided March 22, 2017
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 16‐3085
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:11‐CR‐00025
JESUS SOTO‐OZUNA, a/k/a NERI, a/k/a
CHUY, Tanya Walton Pratt,
Defendant‐Appellant. Judge.
O R D E R
Jesus Soto‐Ozuna appeals the denial of his motion under 18 U.S.C. § 3582(c)(2)
for a sentence reduction based on Amendment 782 to the Sentencing Guidelines, which
retroactively lowered the base offense level for most drug crimes. See U.S.S.G.
§ 1B1.10(d); id. supp. to app. C., amend. 782 (2014). The district court denied the motion,
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED. R. CIV. P. 34(a)(2)(C).
No. 16‐3085 Page 2
stating that Soto‐Ozuna’s sentence was imposed based on a binding plea agreement.
See Fed. R. Crim. P. 11(c)(1)(C). We affirm.
Soto‐Ozuna pleaded guilty to conspiracy to possess with intent to distribute
50 grams or more of methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846. He signed a plea
agreement in which both parties agreed to various “sentencing guidelines stipulations,”
including an adjusted offense level of 38. The parties agreed that the court was to
determine Soto‐Ozuna’s criminal history category, after which the parties would
“jointly recommend a sentence at the low end of the advisory Guideline range
established above (that is, the low end of adjusted offense level 38).” As part of the
agreement, Soto‐Ozuna also waived his right to appeal his conviction or sentence, or
otherwise contest his conviction or sentence or “seek to modify his sentence or the
matter in which it was determined in any type of proceeding, including, but not limited
to, an action brought under 28 U.S.C. § 2255.”
Soto‐Ozuna later moved to reduce his sentence based on Amendment 782,
arguing that this court entertains § 3582(c) motions from defendants who have signed
binding plea agreements so long as the agreement expressly uses the guidelines to
determine the term of imprisonment. See Freeman v. United States, 564 U.S. 522, 534–44
(2011) (Sotomayor, J., concurring); United States v. Scott, 711 F.3d 784, 787 (7th Cir. 2013);
United States v. Dixon, 687 F.3d 356, 359 (7th Cir. 2012). The district court denied the
motion, concluding that Soto‐Ozuna was not entitled to a reduction because his
sentence was imposed based on only the plea agreement, not the guidelines.
On appeal Soto‐Ozuna maintains that his plea agreement and resulting sentence
were based on the guidelines and that he thus is eligible for a sentence reduction. The
government counters that Soto‐Ozuna waived his right to move under § 3582(c)(2)
when he agreed not to “seek to modify his sentence … in any type of proceeding.”
We agree with the government that Soto‐Ozuna waived his right to file a motion
under § 3582(c)(2) when he agreed not to attempt to modify his sentence. We enforce
appellate waivers in plea agreements if the terms of the waiver are express and
unambiguous and the defendant knowingly and voluntarily entered into the
agreement. United States v. Sakellarion, 649 F.3d 634, 638–39 (7th Cir. 2011); United States
v. Aslan, 644 F.3d 526, 534 (7th Cir. 2011). It is true that this court has refused to extend
broad appellate waivers in plea agreements to § 3582(c)(2) motions where the plea
agreement said only that the defendant waived his right to “appeal [his] sentence” or to
“contest [his] sentence or the manner that it was determined in any post‐conviction
proceeding” or “collateral attack.” United States v. Woods, 581 F.3d 531, 533, 536 (7th Cir.
No. 16‐3085 Page 3
2009) overruled on other grounds by United States v. Taylor, 778 F.3d 667, 669 (7th Cir.
2015); United States v. Monroe, 580 F.3d 552, 555–56, 559 (7th Cir. 2009). But Soto‐Ozuna’s
plea agreement barred him additionally from “seek[ing] to modify his sentence or the
manner in which it was determined in any type of proceeding.” And there is no
suggestion that Soto‐Ozuna’s waiver was not knowing and voluntary: He
acknowledges in his appellate brief that he told the district court during sentencing that
he understood the terms of his plea agreement, including his express waiver of his right
to seek to modify his sentence.
Soto‐Ozuna tries to undermine this waiver by pointing to an apparent
typographical error in the plea colloquy transcript. According to the transcript, he was
asked at the hearing if he understood that he expressly agreed not to “modify [his]
sentence on the manner in which it was determined” (emphasis added) instead of “or
the manner in which it was determined,” as written in the plea agreement. Soto‐Ozuna
insists that he is not challenging his sentence on the manner in which it was determined.
This appears to be a distinction without a difference. Even if we credit Soto‐Ozuna’s
interpretation of the wording, he has not suggested why the difference is legally
significant.
Finally, Soto‐Ozuna asserts for the first time in his reply brief that he is not
bound by his agreement because he is a Spanish speaker and the court did not ask him
if the agreement had been translated into Spanish. But Soto‐Ozuna may not raise new
arguments in his reply brief. Ill. Commerce Commʹn v. Fed. Energy Regulatory Commʹn,
721 F.3d 764, 776 (7th Cir. 2013); United States v. Cozzi, 613 F.3d 725, 730 (7th Cir. 2010).
AFFIRMED