FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 3, 2017
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-4010
(D.C. No. 1:15-CR-00054-JNP-1)
JUAN ANTONIO CUBILLAS, (D. Utah)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before BRISCOE, O’BRIEN, and PHILLIPS, Circuit Judges.
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Juan Antonio Cubillas pled guilty to one count of reentry of a previously
removed alien, in violation of 8 U.S.C. § 1326. Mr. Cubillas’ plea agreement
contained a broad waiver of his rights to appeal or collaterally attack his sentence.
Despite this waiver, Mr. Cubillas seeks to appeal from the district court’s denial of a
motion he filed related to a sentencing determination. The government has filed a
motion seeking to enforce the waiver in Mr. Cubillas’ plea agreement under United
States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). We grant the
government’s motion and dismiss the appeal.
*
This order and judgment is not binding precedent, except under the doctrines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.
The district court sentenced Mr. Cubillas to 40 months in prison. This
sentence was within the advisory guidelines range of 37 to 46 months. Mr. Cubillas’
federal sentence made no reference to any state sentence and, as a result, did not
specify whether his federal sentence was to run concurrent with or consecutive to any
state sentence.
Over a year after sentencing, Mr. Cubillas filed a “Motion for Clarification
and/or Request for Recommendation to the Bureau of Prisons.” R. at 32. In his
motion, Mr. Cubillas explained that he had been unsuccessful in having the Bureau of
Prisons (BOP) credit the time he spent in state custody on a drug charge towards his
federal sentence. He argued that the BOP’s failure to award him “prior jail
credits . . . result[ed] in the lengthening of [his] sentence beyond the terms of
imprisonment imposed by the federal court.” R. at 34. He therefore requested that
the district court issue an order clarifying that his federal and state sentences should
run concurrently. Alternatively, he requested that the district court issue a
recommendation to the BOP “supporting a nunc pro tunc designation so that he may
receive credit against his federal sentence for the time spent in the state of Utah’s
custody.” Id. at 35.
The district court denied the motion for clarification, explaining that “there
was no ambiguity in the sentence requiring clarification” because “[t]he issue was
never raised and the court never addressed it.” Id. at 46. The court also denied
Mr. Cubillas’ alternative request that it recommend that the two sentences run
concurrently. Mr. Cubillas seeks to appeal the district court’s denial of his motion,
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but the government asserts that the appeal is barred by the terms of the waiver in the
plea agreement.
Under Hahn, 359 F.3d at 1325, we consider the following three factors in
determining whether to enforce a waiver in a plea agreement: (1) does the disputed
appeal fall within the scope of the waiver; (2) was the waiver knowing and voluntary;
and (3) would enforcing the waiver result in a miscarriage of justice. Mr. Cubillas’
sole argument is that his appeal is outside of the scope of the waiver in his plea
agreement. Because he does not contest that his waiver was knowing and voluntary
and he does not assert that enforcing the waiver would result in a miscarriage of
justice, we need not address those factors. See United States v. Porter, 405 F.3d
1136, 1143 (10th Cir. 2005).
Under the terms of Mr. Cubillas’ plea agreement, he waived his right “to
appeal any sentence imposed upon me, and the manner in which the sentence is
determined,” except for certain situations not applicable here. Mot. to Enforce,
Attach. A at 3. He also waived his “right to challenge [his] sentence, and the manner
in which the sentence is determined, in any collateral review motion, writ or other
procedure . . . .” Id. at 4. He further understood and agreed “that the word
‘sentence’ . . . is being used broadly, and applies to all aspects of the Court’s
sentencing authority . . . .” Id.
Mr. Cubillas argues that his claim is beyond the scope of the plea agreement
because he is not challenging his sentence. But he is in fact challenging a specific
component of his sentence by seeking to have the district court “clarify” or amend his
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sentence to direct that his federal sentence should run concurrent with his previously
imposed state sentence. This challenge falls within the sentencing authority of the
district court because it had the discretion to order his federal and state sentences to
run concurrently. See United States v. Williams, 46 F.3d 57, 58 (10th Cir. 1995)
(“Whether to impose a consecutive or concurrent sentence is a matter within the
discretion of the district court.”); see also 18 U.S.C. § 3584(a) (“Multiple terms of
imprisonment imposed at different times run consecutively unless the court orders
that the terms are to run concurrently.”). And, in Hahn, 359 F.3d at 1328, we held
that a challenge regarding the district court’s failure to exercise its discretion to
impose a sentence concurrent to another federal sentence fell within the scope of the
general waiver related to sentencing matters.
For the foregoing reasons, we conclude that Mr. Cubillas’ appeal falls within
the scope of the waiver in his plea agreement. Accordingly, we grant the
government’s motion to enforce and dismiss this appeal.
Entered for the Court
Per Curiam
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