United States v. Ceballos Martinez

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 14, 2023
• Docket: 22-2080
• Status: Unpublished

Opinion

Appellate Case: 22-2080 Document: 010110812664 Date Filed: 02/14/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 14, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-2080 (D.C. No. 1:21-CR-00597-JB-1) SEVERANO CEBALLOS MARTINEZ, (D. N.M.) a/k/a Juan Mendoza Carlos,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before McHUGH, MORITZ, and EID, Circuit Judges. _________________________________

Defendant Severano Ceballos Martinez1 pleaded guilty to possession with

intent to distribute more than 500 grams of methamphetamine. The district court

sentenced him to 210 months in prison, which was at the low end of the advisory

guidelines range. He filed an appeal despite the appeal waiver in his plea agreement.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 In the change-of-plea and sentencing hearings, the court referred to the defendant as Mr. Martinez, and that is how the government refers to him in its motion to enforce. But in his response to the motion, the defendant refers to himself as Mr. Ceballos. For consistency with the district court proceedings, we refer to the defendant as Mr. Martinez in this decision. Appellate Case: 22-2080 Document: 010110812664 Date Filed: 02/14/2023 Page: 2

The government now moves to enforce the appeal waiver and to dismiss this appeal.

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

I. Discussion

In deciding whether to enforce an appeal waiver, we consider: “(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.” Id. at

1325. Mr. Martinez does not argue that his appeal is outside the scope of his appeal

waiver, so we need not address that issue. See United States v. Porter, 405 F.3d

1136, 1143 (10th Cir. 2005). He contends his appeal waiver was not knowing and

voluntary because his guilty plea was not knowing and voluntary. He also asserts

that enforcing the appeal waiver would result in a miscarriage of justice.

A. Knowing and Voluntary

“[I]n determining whether an appellate waiver is knowing and voluntary under

Hahn, we may consider whether the entire plea agreement, including the plea, was

entered knowingly and voluntarily.” United States v. Rollings, 751 F.3d 1183, 1186

(10th Cir. 2014). Mr. Martinez contends that the magistrate judge2 “erred in failing

to ensure [his] guilty plea was knowing and voluntary after learning that he had no

education whatsoever and was functionally illiterate.” Resp. at 6.

2 Mr. Martinez consented to have a magistrate judge preside over his change-of-plea hearing.

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As in Rollings, because defense counsel did not object to the validity of the

plea at any point in the proceedings, we review Mr. Martinez’s argument solely for

plain error. 751 F.3d at 1191. Under the “demanding” plain-error standard, “he must

demonstrate: (1) an error, (2) that is plain, which means clear or obvious under

current law, and (3) that affects substantial rights.” United States v.

Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014) (internal quotation marks

omitted). “If he satisfies these criteria, this Court may exercise discretion to correct

the error if (4) it seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (internal quotation marks omitted).

Mr. Martinez argues that the magistrate judge failed to conduct a sufficient

inquiry into whether his lack of education and literacy affected his understanding of

the proceedings and the voluntariness of his guilty plea. We are not persuaded by

this argument. Instead, we agree with the government that the magistrate judge fully

complied with Federal Rule of Criminal Procedure 11(b) in evaluating whether

Mr. Martinez was knowingly and voluntarily pleading guilty.

Rule 11(b) states that before accepting a guilty plea, the court must address the

defendant in open court and determine that the defendant understands, among other

things: the nature of his trial rights and the waiver of those rights if he pleads guilty,

the “nature of each charge to which the defendant is pleading,” “any maximum

possible penalty, including imprisonment, fine, and term of supervised release,” “the

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

attack the sentence,” and “that, if convicted, a defendant who is not a United States

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citizen may be removed from the United States, denied citizenship, and denied

admission to the United States in the future.” Fed. R. Crim. P. 11(b)(1)(C)-(H),

(N)-(O).

At the change of plea hearing, the magistrate judge described Mr. Martinez’s

trial rights, and explained that Mr. Martinez would be giving up those rights if he

pled guilty. When asked, Mr. Martinez said he understood and that he was willing to

give up those rights. The magistrate judge also explained the consequences of

pleading guilty given Mr. Martinez’s status as a non-citizen, and he said he

understood those consequences. The magistrate judge confirmed that Mr. Martinez

received a copy of the indictment, that it was read to him in Spanish, and that he

understood the charge to which he would be pleading guilty. The magistrate judge

asked the government’s attorney to recite the potential penalties, and Mr. Martinez

affirmed that he understood them. The magistrate judge next explained how

sentencing would work and confirmed that defense counsel had talked to

Mr. Martinez about the sentencing guidelines and how they might apply in his case.

The magistrate judge asked several questions to ensure Mr. Martinez understood that

the guidelines are not binding, and that defense counsel could give an estimate of the

guidelines range, but if the estimate turned out to be different than what the district

court decides, then Mr. Martinez would not be able to withdraw his guilty plea.

The magistrate judge next turned to the plea agreement, confirming that

Mr. Martinez signed the agreement after it was read to him in Spanish. Mr. Martinez

affirmed that defense counsel explained the plea agreement to him and answered any

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questions before Mr. Martinez signed it, and that he understood each and every term

in his plea agreement. The magistrate judge explained that the district court could

impose a harsher sentence than Mr. Martinez anticipated, but he would not be able to

withdraw his guilty plea.

Mr. Martinez also confirmed that he talked with defense counsel about the

facts and circumstances of his case, what the government would have to prove for

him to be found guilty beyond a reasonable doubt, the evidence and the discovery

that the prosecutor provided, and any possible defenses. The magistrate judge then

reviewed the waiver provision in the plea agreement, asking Mr. Martinez if he

understood the appellate rights that he would be giving up, and Mr. Martinez

affirmed his understanding of the appellate waiver.

The magistrate judge next asked Mr. Martinez to tell the court in his own

words what he did that made him guilty of the offense to which he was pleading

guilty. Mr. Martinez explained that he drove a vehicle knowing it contained

methamphetamine and he planned to give those drugs to somebody when he arrived

at an apartment in Albuquerque. When asked, he admitted he was pleading guilty

because he was in fact guilty of the charge against him. He also confirmed that no

one was forcing him, threatening him, or promising him anything to get him to plead

guilty.

Finally, the magistrate judge asked if Mr. Martinez understood everything that

had been explained to him and all the questions that were asked, and he answered

yes. The magistrate judge asked if Mr. Martinez had any questions before going

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forward, and he said no. The magistrate judge read the charge and asked

Mr. Martinez if he would plead guilty or not guilty. After Mr. Martinez answered,

“[g]uilty,” the magistrate judge found that Mr. Martinez was “competent and capable

of entering an informed plea, that [he was] aware of the nature of the charge against

[him] and the consequences of [his] plea and that [his] plea [was] knowing and

voluntary and supported by sufficient facts.” Mot. to Enf., Ex. 2 at 22. The

magistrate judge therefore accepted the plea and adjudged Mr. Martinez guilty.

Before proceeding further, the magistrate judge asked defense counsel if he had any

objections or concerns about the way the plea hearing was conducted, and counsel

said no.

In his response to the motion to enforce, Mr. Martinez does not explain why

the magistrate judge’s questioning was unsatisfactory, nor does he identify any

questions he thinks the magistrate judge should have asked instead. He also does not

assert that he did not understand the charges, the evidence, his potential defenses, the

potential penalties, the plea agreement, or the appeal waiver.

Mr. Martinez has cited no authority requiring the magistrate judge to conduct

the additional, unspecified inquiry he now claims was missing. Although he cites to

several cases from other circuits to support his argument, those authorities are

inapposite because they involved defendants who had taken medications before their

change-of-plea hearings, but the court did not further inquire about the effects those

medications might have on the defendant’s capacity to enter a voluntary and

intelligent plea. See, e.g., United States v. Parra-Ibanez, 936 F.2d 588, 595-96

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(1st Cir. 1991). By contrast, there is no reason to assume an uneducated or even an

illiterate defendant is unable to knowingly and voluntarily decide whether or not to

plead guilty. “[A] guilty plea is valid if it represents a voluntary and intelligent

choice among the alternatives open to the defendant.” United States v. Gigley,

213 F.3d 509, 516 (10th Cir. 2000).

The magistrate judge ensured that Mr. Martinez’s attorney had explained the

proceedings and the options available to him, and the magistrate judge also

confirmed that Mr. Martinez understood his rights, and the consequences of his

decision to plead guilty. Given Mr. Martinez’s alleged illiteracy and his apparent

inability to speak English, the magistrate judge further confirmed that both the

indictment and the plea agreement were read to him in Spanish. Finally,

Mr. Martinez’s answers to the magistrate judge’s questions at the hearing were

coherent and responsive; nothing about them indicated any lack of understanding on

his part.

The magistrate judge’s plea colloquy complied with Rule 11(b) and

demonstrated Mr. Martinez knowingly and voluntarily pled guilty; he has therefore

failed to show the magistrate judge erred. But even if we assume error, Mr. Martinez

has not shown plain error.

“An error is plain if it is clear or obvious under current, well-settled law.”

United States v. Faulkner, 950 F.3d 670, 678 (10th Cir. 2019) (internal quotation

marks omitted). “For an error to be plain and contrary to well-settled law, either this

court or the Supreme Court must have addressed the issue.” Id. (internal quotation

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marks omitted). Mr. Martinez cannot show plain error because he has failed to point

to any provision of Rule 11, or any case from the Supreme Court or this court,

requiring a trial court to conduct an inquiry beyond that required by Rule 11(b) upon

learning that a defendant has no formal education or is illiterate.

Because Mr. Martinez cannot show his plea was not knowing and voluntary,

he likewise cannot show that his appeal waiver was not knowing and voluntary.

B. Miscarriage of Justice

Mr. Martinez contends that enforcing his appeal waiver would result in a

miscarriage of justice. 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.” Hahn, 359 F.3d at 1327 (internal quotation marks omitted).

Here, Mr. Martinez argues that he received ineffective assistance of counsel

because “there was no objective reason for defense counsel to insist that [he] enter

into an agreement with the government, let alone one that included a comprehensive

appeal waiver,” and “he could have been better off pleading guilty to the indictment

without an agreement.” Resp. at 11. He also appears to argue that his appeal waiver

is otherwise unlawful because of an alleged error in the calculation of his criminal

history points.

We have explained that “a defendant must generally raise claims of ineffective

assistance of counsel in a collateral proceeding, not on direct review.” Porter,

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405 F.3d at 1144. And we have further explained that this “[t]his rule applies even

where a defendant seeks to invalidate an appellate waiver based on ineffective

assistance of counsel.” Id. To the extent Mr. Martinez is seeking to invalidate his

appeal waiver based on ineffective assistance of counsel, he must raise that claim in a

collateral proceeding.

As for his argument about the alleged error in calculating his criminal history

points, Mr. Martinez “misunderstands the miscarriage of justice exception to

enforcement of a waiver of appellate rights,” which “looks to whether the waiver is

otherwise unlawful, not to whether another aspect of the proceeding may have

involved legal error.” United States v. Smith, 500 F.3d 1206, 1212-13

(10th Cir. 2007) (internal quotation marks omitted). Any alleged error in the

calculation of his criminal history points does not demonstrate that Mr. Martinez’s

appeal waiver is unlawful. See id. at 1213. (“To allow alleged errors in computing a

defendant’s sentence to render a waiver unlawful would nullify the waiver based on

the very sort of claim it was intended to waive.”). And he offers no other argument

that addresses how his waiver is otherwise unlawful.

II. Conclusion

For the foregoing reasons, we grant the government’s motion to enforce the

appeal waiver and dismiss this appeal.

Entered for the Court Per Curiam