FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 25, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-1402 (D.C. No. 1:17-CR-00116-RM-5) JOSE CHICA-ORELLANA, a/k/a Adrian, (D. Colo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, Chief Judge, LUCERO and BACHARACH, Circuit Judges. _________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in Jose Chica-Orellana’s plea agreement pursuant to United States v.
Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Chica-Orellana
opposes the motion on the grounds that the government breached the plea agreement
and that the agreement was based on a mutual mistake about sentencing. Exercising
jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal.
* This panel has determined unanimously that oral argument would not materially assist in 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. In ruling on a motion to enforce, 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.” Hahn, 359 F.3d
at 1325. All three Hahn factors are met here, and Chica-Orellana does not claim
otherwise. Instead, he claims the appeal waiver is unenforceable because (1) the
government breached its alleged obligation under the plea agreement, and (2) the plea
agreement was based on a mutual mistake about his criminal history points and
safety-valve eligibility.
1. Breach of Plea Agreement
“[A]n appellate waiver is not enforceable if the Government breaches its
obligations under the plea agreement.” United States v. Rodriguez-Rivera, 518 F.3d
1208, 1212 (10th Cir. 2008). “General principles of contract law define the content
and scope of the government’s obligations under a plea agreement.” United States v.
VanDam, 493 F.3d 1194, 1199 (10th Cir. 2007), overruled on other grounds by
Puckett v. United States, 556 U.S. 129 (2009). “We thus look to the express
language in the agreement to identify both the nature of the government’s promise
and the defendant’s reasonable understanding of this promise at the time of the entry
of the guilty plea.” Id. “We evaluate the record as a whole to ascertain whether the
government complied with its promise.” Id.
Because Chica-Orellana did not raise this argument in the district court, we
review for plain error. See Puckett, 556 U.S. at 133-34; United States v. Bullcoming,
2 579 F.3d 1200, 1205 (10th Cir. 2009). The plain-error test requires the defendant to
demonstrate (1) error, (2) that is plain, (3) that affects his substantial rights, and, if
those first three prongs are met, (4) that the error seriously affects the fairness,
integrity or public reputation of the judicial proceedings. See United States v. Olano,
507 U.S. 725, 732-37 (1993). The Court held in Puckett that, in a breach-of-plea-
agreement case, to establish the third plain-error prong, the defendant must show that
the error had a prejudicial effect on the sentence imposed. See 556 U.S. at 142 n.4.
Chica-Orellana has failed to establish any error, much less plain error, because his
argument is based on a mischaracterization of the record.1
First, there is no support in the record for Chica-Orellana’s claim that the
government breached the plea agreement. Contrary to his assertion, the only
sentencing concession the government made in the plea agreement was that it would
file a motion for a reduction based on his acceptance of responsibility. Nothing in
the written plea agreement suggests that the government made any other sentencing
concessions, and the Statement in Advance made clear that the plea agreement did
not include any promises not “explicitly detailed in” the plea agreement, R. Vol. I,
at 182. Moreover, nothing in the court’s advisement at the change of plea hearing
suggested that the government had agreed to further sentencing concessions.
1 This court does not look favorably on arguments based on misrepresentations of the record. Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). We caution Chica-Orellana’s counsel, Mark T. Baker and Carter B. Harrison IV, that similar misrepresentations in future cases may result in their referral to a disciplinary panel. See 10th Cir. R. 46.5, 46.6. 3 Second, contrary to Chica-Orellana’s assertion, the plea agreement did not
promise that he had only one criminal history point and was safety-valve eligible, and
it did not “expressly stipulate[]” that the guidelines range they thought would apply
was the correct one. Resp. to Mot. to Enforce at 13. Rather, the plea documents
indicate that the parties “believed” he had one criminal history point, that he “should
be eligible” for the safety valve, and that they “estimate[d]” the advisory guidelines
range would be 57 to 71 months. Mot. to Enforce, Attach. 1 at 10. The court’s
colloquy with counsel and Chica-Orellana at the change of plea hearing
acknowledged the possibility that despite what the parties “believe,” he might be in
“Criminal History Category II, which [would] prevent[] the applicability of safety
valve.” Mot. to Enforce, Attach. 2 at 15-16. The court also reminded him that it was
not bound by the parties’ calculation and that the court “get[s] to make [its] own
decisions as to what the appropriate resolution of guideline issues” is. Id. at 16.
Accordingly, based on our review of the plea agreement and the record as a
whole, we conclude that the government did not breach the plea agreement.
2. Mutual Mistake
We have recognized that a mutual mistake about an essential term in a plea
agreement can justify rescission or reformation of the plea agreement, and we
articulated the following three-part test for rescission of a plea agreement on the
basis of mutual mistake:
First, the mistake must relate to a basic assumption on which the contract was made. Second, the party seeking avoidance must show that the mistake has a material effect on the agreed exchange
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 25, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-1402 (D.C. No. 1:17-CR-00116-RM-5) JOSE CHICA-ORELLANA, a/k/a Adrian, (D. Colo.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, Chief Judge, LUCERO and BACHARACH, Circuit Judges. _________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in Jose Chica-Orellana’s plea agreement pursuant to United States v.
Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Chica-Orellana
opposes the motion on the grounds that the government breached the plea agreement
and that the agreement was based on a mutual mistake about sentencing. Exercising
jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal.
* This panel has determined unanimously that oral argument would not materially assist in 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. In ruling on a motion to enforce, 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.” Hahn, 359 F.3d
at 1325. All three Hahn factors are met here, and Chica-Orellana does not claim
otherwise. Instead, he claims the appeal waiver is unenforceable because (1) the
government breached its alleged obligation under the plea agreement, and (2) the plea
agreement was based on a mutual mistake about his criminal history points and
safety-valve eligibility.
1. Breach of Plea Agreement
“[A]n appellate waiver is not enforceable if the Government breaches its
obligations under the plea agreement.” United States v. Rodriguez-Rivera, 518 F.3d
1208, 1212 (10th Cir. 2008). “General principles of contract law define the content
and scope of the government’s obligations under a plea agreement.” United States v.
VanDam, 493 F.3d 1194, 1199 (10th Cir. 2007), overruled on other grounds by
Puckett v. United States, 556 U.S. 129 (2009). “We thus look to the express
language in the agreement to identify both the nature of the government’s promise
and the defendant’s reasonable understanding of this promise at the time of the entry
of the guilty plea.” Id. “We evaluate the record as a whole to ascertain whether the
government complied with its promise.” Id.
Because Chica-Orellana did not raise this argument in the district court, we
review for plain error. See Puckett, 556 U.S. at 133-34; United States v. Bullcoming,
2 579 F.3d 1200, 1205 (10th Cir. 2009). The plain-error test requires the defendant to
demonstrate (1) error, (2) that is plain, (3) that affects his substantial rights, and, if
those first three prongs are met, (4) that the error seriously affects the fairness,
integrity or public reputation of the judicial proceedings. See United States v. Olano,
507 U.S. 725, 732-37 (1993). The Court held in Puckett that, in a breach-of-plea-
agreement case, to establish the third plain-error prong, the defendant must show that
the error had a prejudicial effect on the sentence imposed. See 556 U.S. at 142 n.4.
Chica-Orellana has failed to establish any error, much less plain error, because his
argument is based on a mischaracterization of the record.1
First, there is no support in the record for Chica-Orellana’s claim that the
government breached the plea agreement. Contrary to his assertion, the only
sentencing concession the government made in the plea agreement was that it would
file a motion for a reduction based on his acceptance of responsibility. Nothing in
the written plea agreement suggests that the government made any other sentencing
concessions, and the Statement in Advance made clear that the plea agreement did
not include any promises not “explicitly detailed in” the plea agreement, R. Vol. I,
at 182. Moreover, nothing in the court’s advisement at the change of plea hearing
suggested that the government had agreed to further sentencing concessions.
1 This court does not look favorably on arguments based on misrepresentations of the record. Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). We caution Chica-Orellana’s counsel, Mark T. Baker and Carter B. Harrison IV, that similar misrepresentations in future cases may result in their referral to a disciplinary panel. See 10th Cir. R. 46.5, 46.6. 3 Second, contrary to Chica-Orellana’s assertion, the plea agreement did not
promise that he had only one criminal history point and was safety-valve eligible, and
it did not “expressly stipulate[]” that the guidelines range they thought would apply
was the correct one. Resp. to Mot. to Enforce at 13. Rather, the plea documents
indicate that the parties “believed” he had one criminal history point, that he “should
be eligible” for the safety valve, and that they “estimate[d]” the advisory guidelines
range would be 57 to 71 months. Mot. to Enforce, Attach. 1 at 10. The court’s
colloquy with counsel and Chica-Orellana at the change of plea hearing
acknowledged the possibility that despite what the parties “believe,” he might be in
“Criminal History Category II, which [would] prevent[] the applicability of safety
valve.” Mot. to Enforce, Attach. 2 at 15-16. The court also reminded him that it was
not bound by the parties’ calculation and that the court “get[s] to make [its] own
decisions as to what the appropriate resolution of guideline issues” is. Id. at 16.
Accordingly, based on our review of the plea agreement and the record as a
whole, we conclude that the government did not breach the plea agreement.
2. Mutual Mistake
We have recognized that a mutual mistake about an essential term in a plea
agreement can justify rescission or reformation of the plea agreement, and we
articulated the following three-part test for rescission of a plea agreement on the
basis of mutual mistake:
First, the mistake must relate to a basic assumption on which the contract was made. Second, the party seeking avoidance must show that the mistake has a material effect on the agreed exchange
4 of performances. Third, the mistake must not be one as to which the party seeking relief bears the risk.
United States v. Frownfelter, 626 F.3d 549, 555 (10th Cir. 2010) (internal quotation
marks omitted).
Here, the alleged mistake fails the first Frownfelter element. Despite the
parties’ beliefs about what the guidelines range would be, they did not make a basic
assumption that the district court would only sentence him within their estimated
range. To the contrary, they specifically acknowledged that the court would make its
own determination of the guideline range, was not bound by their recommendations,
would not make any decisions about sentencing until it had considered the
Presentence Report, and could impose any sentence it deemed appropriate up to the
maximum allowable sentence of life imprisonment.
The alleged mistake also fails the second element of the Frownfelter test. To
prevail on that element, Chica-Orellana “must show that the resulting imbalance in
the agreed exchange is so severe that he [cannot] fairly be required to carry it out.”
Id. at 556 (internal quotation marks omitted). Although he expected he would have
fewer criminal history points and would therefore be safety-valve eligible and have a
lower advisory guidelines range, he has not shown a severe imbalance in the parties’
agreed-upon exchange or performances given the government’s agreement to
dismissal of numerous other charges and the fact that the sentence imposed is
significantly less than what it would have been absent the plea agreement. Moreover,
given the parties’ acknowledgement of the district court’s sentencing discretion,
5 fulfillment of his expectations was not required to justify holding him to the terms of
the plea agreement.
The third element of the Frownfelter test is also not satisfied here because,
regardless of what his criminal history points were determined to be, Chica-Orellana
bore the risk that the district court would not adopt the parties’ estimated guidelines
range by entering into a plea agreement that did not include a stipulated sentence and
left both the calculation of the guidelines range and the ultimate sentencing decision
to the discretion of the court.
Conclusion
Accordingly, we grant the government’s motion to enforce the appellate
waiver in the plea agreement, and we dismiss this appeal.
Entered for the Court Per Curiam