United States v. Antillo-Quintero

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 13, 2022
• Docket: 22-1042
• Status: Unpublished

Opinion

Appellate Case: 22-1042 Document: 010110683985 Date Filed: 05/13/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 13, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-1042 (D.C. No. 1:20-CR-00028-RM-14) JESUS ANTILLO-QUINTERO, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before HOLMES, KELLY, and McHUGH, Circuit Judges. _________________________________

Jesus Antillo-Quintero appeals from his sentence despite the appeal waiver in

his plea agreement. The government now moves to enforce that waiver under United

States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).

Through counsel, Antillo-Quintero responds that the appeal waiver does not

encompass the argument he intends to make on appeal and that enforcing the waiver

would be a miscarriage of justice. For the reasons explained below, we grant the

government’s motion.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-1042 Document: 010110683985 Date Filed: 05/13/2022 Page: 2

I. BACKGROUND & PROCEDURAL HISTORY

In early 2020, a grand jury in the District of Colorado indicted

Antillo-Quintero and numerous others on drug-conspiracy and related charges.

Antillo-Quintero chose to plead guilty to the drug-conspiracy charge in exchange for

the government’s agreement to dismiss other charges and to recommend that he

receive credit for acceptance of responsibility. Antillo-Quintero and the government

embodied this deal in a written plea agreement containing the following appeal

waiver:

The defendant is aware that 18 U.S.C. § 3742 affords the right to appeal the sentence, including the manner in which that sentence is determined. Understanding this, and in exchange for the concessions made by the Government in this agreement, the defendant knowingly and voluntarily waives the right to appeal any matter in connection with this prosecution, conviction, or sentence unless it meets one of the following criteria: (1) the sentence exceeds the advisory guideline range that applies to a total offense level of 29 or, if applicable, the statutory mandatory minimum sentence; or (2) the Government appeals the sentence imposed.

Mot. to Enforce Appeal Waiver, Attach. 1 (“Plea Agreement”) at 2.

At the change-of-plea hearing, the district court explained the concepts of

“total offense level of 29” and “statutory mandatory minimum sentence,” and

confirmed Antillo-Quintero’s understanding of the appeal waiver. The district court

further explained that the mandatory minimum sentence in question was ten years.

Finally, the court announced that, assuming the mandatory minimum applied, the

court could sentence below that only if Antillo-Quintero substantially assisted the

2 Appellate Case: 22-1042 Document: 010110683985 Date Filed: 05/13/2022 Page: 3

government, see 18 U.S.C. § 3553(e), or if he met the requirements of the so-called

“safety valve” provision in 18 U.S.C. § 3553(f).

Based on Antillo-Quintero’s answers to the district court’s questions on these

and other topics, the district court found that Antillo-Quintero had competently,

knowingly, and voluntarily entered into the plea agreement. The court accordingly

accepted the agreement and set the matter for sentencing.

At sentencing, no party disputed that the mandatory ten-year minimum would

apply if Antillo-Quintero did not qualify for safety-valve relief. Thus, the bulk of

sentencing hearing focused on the safety-valve requirements.

Under the circumstances of the case, the first safety-valve question for the

district court was whether Antillo-Quintero possessed a firearm “in connection with

the offense.” Id. § 3553(f)(2). Law enforcement officials had executed a search

warrant for Antillo-Quintero’s home and discovered firearms. Antillo-Quintero

argued, however, that the evidence did not show a connection to his offense because

the government had surveilled him and his co-conspirators for an extended time and

the results of that surveillance (e.g., wiretap recordings) never mentioned firearms.

The district court concluded this was not enough to meet the defendant’s burden to

show a lack of connection.

Although that ruling was enough to deny safety-valve relief, the court

and the parties also debated a different safety-valve condition, namely, whether

Antillo-Quintero had fully disclosed to the government what he knew about the

offense and the others involved. See id. § 3553(f)(5). The district court announced

3 Appellate Case: 22-1042 Document: 010110683985 Date Filed: 05/13/2022 Page: 4

its impression that, in light of what Antillo-Quintero divulged, his failure to divulge

related details suggested he had attempted to give the appearance of cooperation

without fully cooperating. Antillo-Quintero objected that the government never

asked about the additional details and he had no reason to suspect the government

wanted that information. He further requested a continuance so he could provide

whatever additional details the government might want. The district court denied

that request and found he had not carried his burden to show full cooperation.

Because the safety valve did not apply, the district court sentenced

Antillo-Quintero to the mandatory minimum of ten years’ imprisonment.

Antillo-Quintero timely appealed, prompting the government to file the motion

now at issue.

II. ANALYSIS

The government’s motion to enforce requires us to ask three questions:

“(1) whether the disputed appeal falls within the scope of the waiver of appellate

rights; (2) whether the defendant knowingly and voluntarily waived his appellate

rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.”

Hahn, 359 F.3d at 1325. We address them in turn.

A. Scope of the Waiver

Antillo-Quintero intends to argue on appeal that the district court made “an

erroneous and/or unconstitutional evaluation of the ‘safety valve’ factors,” in

violation of his due process rights. Def.’s Resp. to Gov’t Mot. to Enforce Appeal

4 Appellate Case: 22-1042 Document: 010110683985 Date Filed: 05/13/2022 Page: 5

Waiver (“Response”) at 2, 3. The government contends that this argument falls

within the appeal waiver. We agree with the government.

Again, the waiver contains two narrow exceptions: “(1) the sentence exceeds

the advisory guideline range that applies to a total offense level of 29 or, if

applicable, the statutory mandatory minimum sentence; or (2) the Government

appeals the sentence imposed.” Plea Agreement at 2. Antillo-Quintero received the

statutory mandatory minimum sentence and the government has not appealed. On its

face, then, no exception permits this appeal.

Antillo-Quintero does not argue that the words “if applicable” preserve his

proffered safety-valve challenge. He instead argues from a different section of the

plea agreement, ten pages later, which states,

The parties understand that the Court is free, upon consideration and proper application of all 18 U.S.C. § 3553 factors, to impose that reasonable sentence which it deems appropriate in the exercise of its discretion and that such sentence may be less than that called for by the advisory guidelines (in length or form), within the advisory guideline range, or above the advisory guideline range up to and including imprisonment for the statutory maximum term, regardless of any computation or position of any party on any 18 U.S.C. § 3553 factor.

Id. at 12–13 (emphasis added). Thus, he says, “it is clear that the appeal of an

unreasonable and unconstitutional sentence did not fall in the scope of the appeal

waiver.” Response at 2.

We recognize that appeal waivers are construed narrowly, see Hahn, 359 F.3d

at 1325, but Antillo-Quintero’s interpretation—based on language in a later section

5 Appellate Case: 22-1042 Document: 010110683985 Date Filed: 05/13/2022 Page: 6

with no obvious relation to the appeal waiver—would empty his appeal waiver of

meaning. “[C]ontract principles govern plea agreements.” Id. at 1324–25. “[A]n

interpretation which gives a reasonable, lawful, and effective meaning to all the terms

is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no

effect[.]” Restatement (Second) of Contracts § 203(a) (1981). Here, the “reasonable

sentence” passage quoted above is best understood in context, not as qualifying the

appeal waiver, but as affirming the district court’s discretion despite what the parties

may argue, particularly regarding guidelines calculations. See also Plea Agreement

at 12 (noting that the parties’ guidelines calculations do not bind the court and that

any party’s calculation does not prevent the party from requesting a departure or

variance).

Antillo-Quintero further argues that the supposed interplay between the appeal

waiver and the “reasonable sentence” passage at least creates an ambiguity. See

Hahn, 359 F.3d at 1325 (noting that ambiguities will be construed against the

government). But courts generally define contractual ambiguity as “the possibility

that a word or phrase in a contract might reasonably and plausibly be subject to more

than one meaning.” 11 Richard A. Lord, Williston on Contracts § 32:12 (4th ed.,

May 2022 update). Standing alone, the appeal waiver does not satisfy this standard,

and we do not view the “reasonable sentence” passage ten pages later as rendering

the appeal waiver plausibly subject to an implied exception that nullifies the explicit

exceptions. Cf. Gelco Builders & Burjay Constr. Corp. v. United States, 369 F.2d

992, 999–1000 (Ct. Cl. 1966) (per curiam) (“[T]he alternative interpretation placed

6 Appellate Case: 22-1042 Document: 010110683985 Date Filed: 05/13/2022 Page: 7

upon the alleged ambiguity by the contractor [must] be, under all the circumstances,

a reasonable and practical one.”).

For these reasons, we find that this appeal falls within Antillo-Quintero’s

appeal waiver.

B. Knowing and Voluntary Waiver

Normally, we would next ask “whether the defendant knowingly and

voluntarily waived his appellate rights.” Hahn, 359 F.3d at 1325. But we need not

address a Hahn factor that the defendant does not dispute, see United States v.

Porter, 405 F.3d 1136, 1143 (10th Cir. 2005), and Antillo-Quintero does not raise

any argument in this regard. We therefore deem him to concede that his waiver was

knowing and voluntary.

C. Miscarriage of Justice

Last, we ask “whether enforcing the waiver would result in a miscarriage of

justice.” Hahn, 359 F.3d at 1325. A miscarriage of justice occurs “[1] where the

district court relied on an impermissible factor such as race, [2] where ineffective

assistance of counsel in connection with the negotiation of the waiver renders the

waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4] where

the waiver is otherwise unlawful.” Id. at 1327 (bracketed numerals in original;

internal quotation marks omitted).

Antillo-Quintero relies on the otherwise-unlawful prong, arguing that the

district court egregiously violated his due process rights when it denied him

safety-valve relief. But the otherwise-unlawful inquiry focuses on the waiver. It is

7 Appellate Case: 22-1042 Document: 010110683985 Date Filed: 05/13/2022 Page: 8

not a license to inquire “whether another aspect of the proceeding may have involved

legal error.” United States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007); see also

United States v. Holzer, 32 F.4th 875, 2022 WL 1207861, at *9 (10th Cir. Apr. 25,

2022) (“[T]he occurrence of constitutional errors during sentencing is [not] sufficient

to establish that the waiver itself was unlawful.”). Antillo-Quintero’s attack on the

district court’s safety-valve conclusion is an attack on the lawfulness of his sentence,

not his appeal waiver.

Absent any meritorious argument from Antillo-Quintero that his waiver was

otherwise unlawful, we find that enforcing the waiver would not result in a

miscarriage of justice.

III. CONCLUSION

This appeal falls within Antillo-Quintero’s appeal waiver, and no other Hahn

factor counsels against enforcement of the waiver. We therefore grant the

government’s motion to enforce the waiver and dismiss this appeal.

Entered for the Court Per Curiam