FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 29, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-2186
(D.C. No. 1:11-CR-01691-WJ-1)
ALONSO ANILES-MARQUEZ, (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, LUCERO and GORSUCH, Circuit Judges.
This matter is before the court on the government’s motion to enforce the
appeal waiver contained in defendant Alonso Aniles-Marquez’s plea agreement. We
grant the government’s motion and dismiss the appeal.
Mr. Aniles-Marquez pled guilty pursuant to a plea agreement to one count of
possession with intent to distribute more than five grams of methamphetamine, in
*
This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), and one count of possession with intent
to distribute a mixture and substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C).
Mr. Aniles-Marquez stipulated in his plea agreement that “[a]t least 35 grams but less
than 50 grams of methamphetamine (actual) are attributable to [him].” Mot. to
Enforce, Attach. # 1 (Plea Agreement), at 5. He also acknowledged in the plea
agreement that the maximum term of imprisonment the court could impose was
“a period of not less than 5 years nor more than 40 years.” Id. at 2. The district court
accepted his guilty plea and, after calculating his sentencing guideline range to be
87 to 108 months, sentenced him to 92 months’ incarceration on each count, to run
concurrently.
As part of his plea agreement, Mr. Aniles-Marquez “knowingly waive[d] the
right to appeal [his] conviction(s) and any sentence, including any fine, at or under
the maximum statutory penalty authorized by law.” Id. at 10. He nonetheless filed
an appeal, which prompted the government to file the current motion to dismiss in
accordance with United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004)
(en banc) (per curiam). Mr. Aniles-Marquez’s court-appointed attorney filed a
response to the government’s motion stating that “after a conscientious examination
of the record,” he concluded “that only frivolous grounds exist by which to oppose
the government’s motion,” and he asked to withdraw from representation. Resp. to
Mot. to Enforce at 1; see also Anders v. California, 386 U.S. 738 (1967). In light of
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counsel’s response, we invited Mr. Aniles-Marquez to file a pro se response, which
he did.
Mr. Aniles-Marquez lists eleven errors in his response that he contends
warrant allowing him to proceed with his appeal. Most of them involve alleged
sentencing errors, one involves an alleged error in the government’s statement of
facts supporting his guilty plea, and another involves his trial counsel’s alleged
ineffective assistance in not advising him of the immigration consequences of his
plea.
We will enforce an appeal waiver as long as three elements are met: (1) “the
disputed appeal falls within the scope of the appellate waiver”; (2) “the defendant
knowingly and voluntarily waived his appellate rights”; and (3) “enforcing the waiver
will [not] result in a miscarriage of justice.” Hahn, 359 F.3d at 1325, 1327. The first
factor is satisfied because none of the issues Mr. Aniles-Marquez raises falls outside
the scope of his appeal waiver.
The second factor is also satisfied. Mr. Aniles-Marquez does not argue that
his waiver of appellate rights was not knowing and voluntary, an element on which
he bears the burden of proof, see United States v. Salas-Garcia, 698 F.3d 1242, 1254
(10th Cir. 2012). Further, our independent review of the plea agreement and the
Rule 11 colloquy demonstrates that his waiver was knowing and voluntary. See id.
(“[T]he court examines whether the language of the plea agreement states that the
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defendant entered the agreement knowingly and voluntarily, and whether there was
an adequate Federal Rule of Criminal Procedure 11 colloquy.”).
Although Mr. Aniles-Marquez alleges that he was not adequately advised of
the immigration consequences of his guilty plea, the plea agreement itself clearly
explains those consequences:
[P]leading guilty may have consequences with respect to Defendant’s
immigration status if Defendant is not a citizen of the United States.
Under federal law, a broad range of crimes are removable offenses,
including the offenses to which Defendant is pleading guilty. Indeed,
because Defendant is pleading guilty to violations of 21 U.S.C.
§§ [841](a)(1), (b)(1)(B) and (b)(1)(C), removal is presumptively
mandatory. . . . Defendant nevertheless affirms that Defendant wants to
plead guilty regardless of any immigration consequences that
Defendant’s plea may entail, even if the consequence is Defendant’s
automatic removal from the United States.
Plea Agreement at 9-10. And the court discussed the immigration consequences of
his plea with him as part of the Rule 11 colloquy:
THE COURT: And as part of your agreement, you’re agreeing to
be deported following your service of incarceration. You’re giving up
any hearing before you are deported. Do you understand that?
THE DEFENDANT: Yes, ma’am.
THE COURT: And with that deportation and this criminal
conviction, it will be impossible for you to enter the United States
lawfully in the future. Do you understand that?
THE DEFENDANT: Yes, ma’am.
Mot. to Enforce, Attach. 2 (Plea Hrg. Tr.), at 9. Accordingly, we see no basis for
concluding that Mr. Aniles-Marquez did not waive his appellate rights knowingly and
voluntarily.
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“Under the final factor of Hahn, the court will enforce an appellate waiver
unless it finds that the enforcement of the waiver would constitute a miscarriage of
justice.” Salas-Garcia, 698 F.3d at 1255 (internal quotation marks omitted).
Enforcement of the waiver will constitute a miscarriage of justice only if one of the
following circumstances is present: (1) “the district court relied on an impermissible
factor such as race”; (2) the “ineffective assistance of counsel in connection with the
negotiation of the waiver renders the waiver invalid”; (3) “the sentence exceeds the
statutory minimum”; or (4) “the waiver is otherwise unlawful.” Id. (internal
quotation marks omitted). None of these circumstances are present here.
Mr. Aniles-Marquez does contend that his trial counsel was ineffective in advising
him of the immigration consequences of his guilty plea, but even if this claim
somehow relates to the negotiation of the appeal waiver, Mr. Aniles-Marquez must
wait to raise it in a separate proceeding under 28 U.S.C. § 2255. See United States v.
Novosel, 481 F.3d 1288, 1295 (10th Cir. 2007) (per curiam).
Accordingly, we grant the government’s motion to enforce the appeal waiver
and dismiss the appeal. Defense counsel’s request to withdraw is denied without
prejudice to renewal in a proper motion that comports with 10th Cir. R. 46.4.
Mr. Aniles-Marquez’s request for appointment of counsel is denied as moot.
Entered for the Court
Per Curiam
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