United States v. Chavez-Salais

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 29 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.
No. 02-2138
JESUS CHAVEZ-SALAIS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. Nos. CR-00-547-JC & CIV-02-440-JC/WWD)

Submitted on the briefs: *

Michael G. Katz, Federal Public Defender, and Vicki Mandell-King, Assistant
Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

David C. Iglesias, United States Attorney, and Laura Fashing, Assistant United
States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
MURPHY, Circuit Judge.

*
After examining the briefs and appellate record, 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 therefore is ordered
submitted without oral argument.
EBEL, Circuit Judge.

Defendant-Appellant Jesus Chavez-Salais pled guilty to one count of

reentry of a previously deported alien, in violation of 8 U.S.C. § 1326(a)(1), (2)

and (b)(2), and was sentenced to 57 months’ imprisonment. As part of his plea

agreement, Defendant waived his right to appeal or to collaterally attack his

sentence. He later filed a motion to modify his sentence pursuant to 18 U.S.C.

§ 3582(c)(2) based on a post-sentencing amendment to the United States

Sentencing Guideline that was applied to his case. The district court denied

Defendant’s motion, and he timely appealed. 1 The Government now argues that

the waiver contained in Defendant’s plea agreement deprives us of jurisdiction to

hear his appeal. We disagree and take jurisdiction pursuant to 28 U.S.C. § 1291.

But because circuit precedent squarely forecloses Defendant’s substantive

argument, we AFFIRM the district court’s denial of his motion.

1
Defendant argues that the district court improperly recharacterized his
§ 3582(c)(2) motion as a 28 U.S.C. § 2255 motion. That is incorrect. In a
footnote to its Order dismissing Defendant’s motion, the district court stated,
“The Clerk’s automated case-opening system categorizes all motions challenging
federal convictions or sentences under 28 U.S.C. § 2255.” That statement appears
to have been merely a clarification of how the case was initially docketed; the
court referred to, analyzed and disposed of Defendant’s motion as a § 3582(c)(2)
motion. Defendant’s argument to the contrary lacks merit.

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I. Validity of Defendant’s waiver

The waiver provision in Defendant’s plea agreement waived both his right

to direct appeal and to “any collateral attack, including but not limited to, a

motion brought under Title 28, United States Code, Section 2255,” except to the

extent that the district court departed upward from the applicable guideline range.

The waiver stated, in relevant part:

Defendant knowingly waives the right to appeal any sentence within the
guideline range applicable to the statute of conviction as determined by the
Court after resolution of any objections by either party to the presentence
report to be prepared in this case, and defendant specifically agrees not to
appeal the determination of the Court in resolving any contested sentencing
factor. In other words, Defendant waives the right to appeal the sentence
imposed in this case except to the extent, if any, that the Court may depart
upwards from the applicable sentencing guideline range as determined by
the Court. The defendant also waives his right to challenge his sentence or
the manner in which it was determined in any collateral attack, including
but not limited to, a motion brought under Title 28, United States Code,
Section 2255, except to the extent that the court may depart upwards from
the applicable sentencing guideline range.

(Plea Agreement at 5 (emphasis added).)

“A defendant’s knowing and voluntary waiver of the statutory right to

appeal his sentence is generally enforceable.” United States v. Elliott, 264 F.3d

1171, 1173 (10th Cir. 2001) (internal quotation marks and citations omitted); see

also United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1998) (“This

court will hold a defendant to the terms of a lawful plea agreement.”).

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 The terms of Defendant’s plea agreement specifically waived his right to

appeal directly his sentence, as well as his right to “any collateral attack” of it.

The Government argues that the waiver “includes collateral challenges brought

under 18 U.S.C. § 3582(c)(2), even though the plea agreement does not

specifically mention such motions.” We disagree.

We construe a defendant’s plea agreement “according to contract principles

and what the defendant reasonably understood when he entered his plea.” United

States v. Veri, 108 F.3d 1311, 1313 (10th Cir. 1997). The conventional

understanding of “collateral attack” comprises challenges brought under, for

example, 28 U.S.C. § 2241, 28 U.S.C. § 2254, 28 U.S.C. § 2255, as well as writs

of coram nobis. These are extraordinary remedies that complain about the

substance of, or proceedings that determined, a defendant’s original sentence or

conviction. It is by no means obvious that a defendant’s motion to modify his

sentence under 18 U.S.C. § 3582(c)(2), pursuant to a subsequent amendment in

the Sentencing Guideline that was applied to his case, would be reasonably

understood as a “collateral attack” on his sentence as opposed to a motion

prospectively to modify a sentence based on events occurring after the original

sentence was imposed. Cf. United States v. Torres-Aquino, No. 02-2075, __ F.3d

__, 2003 U.S. App. LEXIS 13473 (10th Cir. July 2, 2003) (which similarly draws

a distinction between § 2255 actions, which attack the original sentence, and

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§ 3582(c)(2) actions, which do not attack the original sentence but only seek to

modify it).

“A waiver is ordinarily an intentional relinquishment or abandonment of a

known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938)

(discussing waivers of the Sixth Amendment right to counsel); see also Brady v.

United States, 397 U.S. 742, 748 (1970) (“Waivers of constitutional rights not

only must be voluntary but must be knowing, intelligent acts done with sufficient

awareness of the relevant circumstances and likely consequences.”) (discussing

guilty pleas). Like most waivers, a defendant’s waiver of his right to appeal or

collaterally attack his sentence is to be construed narrowly. See, e.g., United

States v. Ready, 82 F.3d 551, 558 (2d Cir. 1996) (“We construe a criminal

defendant’s waiver of appellate rights narrowly.”). It is with that approach in

mind that we turn to the scope of Defendant’s waiver in this case.

In the context of a defendant’s waiver of his right to appeal or collaterally

attack his sentence, there are two ways the content of that waiver can be made

known to him.

First is through the language of the plea agreement itself. If the agreement

explicitly states that a Defendant is waiving a particular right, we will hold him to

that waiver, barring “certain exceptions, including where the agreement was

involuntary or unknowing, where the court relied on an impermissible factor such

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as race, or where the agreement is otherwise unlawful.” United States v.

Cockerham, 237 F.3d 1179, 1182 (10th Cir. 2001). Thus, for example, we have

repeatedly held defendants to the terms of lawful plea agreements that explicitly

waived the right to appeal or to collaterally attack a sentence under 28 U.S.C.

§ 2255. See, e.g., Atterberry, 144 F.3d at 1300 (waiver of direct appeal);

Cockerham, 237 F.3d at 1183 (waiver of collateral attack under § 2255). In this

case, however, the plea agreement did not explicitly state that Defendant was

waiving his right to bring a later motion to modify his sentence under 18 U.S.C.

§ 3582(c)(2). Had the agreement contained such language, or language

suggesting that Defendant waived the right “to attack collaterally or otherwise

attempt to modify or change his sentence,” we would likely find that Defendant

had waived his right to bring the instant motion. The agreement contained no

such language, however, and we do not believe that motions under 18 U.S.C.

§ 3582(c)(2) are clearly understood to fall within a prohibition on “any collateral

attack.” Defendant’s motion under § 3582(c)(2) does not so much challenge the

original sentence as it seeks a modification of that sentence based upon an

amendment to the Guidelines. Thus, we find that the language of the plea

agreement itself does not clearly reach Defendant’s instant motion under 18

U.S.C. § 3582(c)(2).

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 The second way in which the content of a defendant’s waiver of appeal

rights can be made known to him is through the colloquy with the court required

by Federal Rule of Criminal Procedure 11. That rule states, inter alia, that before

accepting a plea of guilty or nolo contendere, the court must address the

defendant in open court and determine that the defendant understands “the terms

of any plea-agreement provision waiving the right to appeal or to collaterally

attack the sentence.” Fed. R. Crim. P. 11(b)(1)(N). 2

In this case, the court did engage in a Rule 11 colloquy with Defendant, but

we find that colloquy insufficient to support the conclusion that Defendant knew

he was waiving his right to make a later motion under 18 U.S.C. § 3582(c)(2). In

its entirety, the court’s discussion of the scope of the waiver being signed by

Defendant and his co-defendant was as follows:

THE COURT: Do each of you understand that under your plea agreements,
you have given up your right to appeal your sentence which you might
otherwise have, provided it is within the Guideline range?

MR. J. CHAVEZ: Yes, sir.

2
We have held that such a colloquy is not required if the record as a whole
suggests that the defendant’s waiver was knowing and voluntary. Atterberry, 144
F.3d at 1300 (holding a defendant to the terms of his appeal waiver, despite the
lack of a colloquy transcript, when “nothing in the record suggest[ed] the waiver
was not made knowingly and voluntarily” and when the defendant himself did not
so suggest).

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The court did not tell Defendant that his waiver of “any collateral attack” would

also include any subsequent effort to seek modification of his sentence. Nor did

it explain to Defendant that “any collateral attack” would include a subsequent

motion to modify his sentence under 18 U.S.C. § 3582(c)(2). Had the court

explained these things to Defendant, we might be able to conclude that he

knowingly and voluntarily waived his right to bring the instant motion. But the

court’s cursory exchange with Defendant, which mentions only the waiver of his

“right to appeal,” leads us to conclude that the Rule 11 colloquy did not clearly

inform Defendant that his waiver would reach motions brought under 18 U.S.C.

§ 3582(c)(2).

We are left with an ambiguity. Neither Defendant’s plea agreement nor the

Rule 11 colloquy clearly informed him that he was waiving his right to bring a

later motion to modify his sentence under 18 U.S.C. § 3582(c)(2). We therefore

cannot conclude that Defendant’s waiver of his right to bring such a motion was

knowing and voluntary. Accordingly, we hold that Defendant did not waive his

right to bring the instant motion and we thus reach the merits of that motion.

II. Whether the amendment to U.S.S.G. § 2L1.2 applies retroactively

Amendment 632 to the United States Sentencing Guidelines amended

§ 2L1.2, which applies to defendants convicted of reentering or remaining in the

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United States after having been previously deported. See U.S.S.G. App. C Supp.

at 222-25 (2001). The previous version of the Guideline provided for a sixteen-

level sentence enhancement for all defendants who returned or remained after

having been previously convicted of an aggravated felony, regardless of what

type. Id. at 223. That version of the Guideline was applied to Defendant when he

was sentenced on October 30, 2000. The revised version of the Guideline

provides for enhancements of eight, twelve or sixteen levels, depending on what

type of aggravated felony the defendant was convicted of. U.S.S.G. § 2L1.2

(2001). The revised Guideline became effective on November 1, 2001. See

U.S.S.G. App. C Supp. at 225 (2001).

Defendant argues that although Amendment 632 is not listed in U.S.S.G.

§ 1B1.10(c), which names the Guideline Amendments that may be applied

retroactively, the Amendment should nevertheless be applied retroactively to his

case. We have held that “sentencing and reviewing courts may still give

retroactive effect to amendments that are ‘clarifying (as opposed to

substantive),’” even if they are not listed in § 1B1.10(c). United States v.

Kissick, 69 F.3d 1048, 1052 (10th Cir. 1995) (quoting United States v. Capers, 61

F.3d 1100, 1109 (4th Cir. 1995)). Defendant argues that Amendment 632 is

clarifying, not substantive, and should therefore be applied retroactively.

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 Our recent decision in United States v. Torres-Aquino, No. 02-2075, __

F.3d __, 2003 U.S. App. LEXIS 13473 (10th Cir. July 2, 2003), which was

decided after the briefs in the instant case had been submitted, controls our

disposition of this case. In Torres-Aquino, we stated that because “Amendment

632 is not listed in § 1B1.10(c)[,] ... defendant is not entitled to relief under

§ 1B1.10.” Id. at *3. We also rejected the defendant’s substantive-or-clarifying

argument under Kissick as not properly brought under § 3582(c)(2). Id. at *4.

That argument, we said, should be “raised on direct appeal or in a motion to

vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.” Id.

In the instant case, Defendant’s argument is identical to the one that we

rejected in Torres-Aquino. Accordingly, the district court’s denial of Defendant’s

motion to modify his sentence under 18 U.S.C. § 3582(c)(2) is AFFIRMED.

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