NOT RECOMMENDED FOR PUBLICATION File Name: 25a0077n.06
No. 23-6113
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Feb 11, 2025 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ON APPEAL FROM THE ) UNITED STATES DISTRICT ) v. COURT FOR THE EASTERN ) DISTRICT OF KENTUCKY ) ERNESTO MENDEZ-LOPEZ, ) OPINION Defendant-Appellant. ) )
Before: WHITE, READLER, and MATHIS, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Defendant-Appellant Ernesto Mendez-Lopez appeals
his conviction and sentence for coercing a minor to engage in sexually explicit conduct, arguing
that his guilty plea is invalid because it was not knowing and voluntary, and his sentence is
substantively unreasonable. Because both his plea and sentence are valid, we AFFIRM.
I. Facts
In February 2023, a 911 dispatch center in Kentucky received a call from the thirteen-year-
old stepdaughter of Defendant-Appellant Ernesto Mendez-Lopez. The child stated that Mendez-
Lopez had raped her “numerous times, beginning when she was 11 years of age,” and that she was
afraid he would do it again. R. 16, PID 42. During the ensuing investigation, Mendez-Lopez
admitted to police that “he would drink excessively and, during these times, he had engaged in
sexual acts” with his stepdaughter. Id. Police seized Mendez-Lopez’s cellphone, which contained
videos of Mendez-Lopez raping his stepdaughter. Mendez-Lopez admitted that he took these
videos. No. 23-6113, United States v. Mendez-Lopez
Mendez-Lopez pleaded guilty to one count of “coercing a minor to engage in sexually
explicit conduct for the purpose of producing a visual depiction of that conduct,” in violation of
18 U.S.C. § 2251(a). Id. at 41. In exchange, the Government dropped four other counts related to
the production and possession of child pornography. As part of the plea agreement, Mendez-Lopez
“waive[d] the right to appeal the guilty plea and conviction.” Id. at 45. And “[e]xcept for claims
of ineffective assistance of counsel,” he “waive[d] the right to attack collaterally the guilty plea,
conviction, and sentence.” Id.
Mendez-Lopez, who is in his late thirties, immigrated illegally to the United States when
he was fifteen. According to the pre-sentence report, Mendez-Lopez “speaks Spanish and some
English.” R. 39, PID 123. The plea agreement he signed was drafted in English, and Mendez-
Lopez did not receive a written translation in Spanish.
The district court held a change-of-plea hearing in August 2023. At the hearing, the court
provided a Spanish-language interpreter to assist Mendez-Lopez. With that interpreter present,
the prosecutor and district court each discussed the plea agreement in detail, and Mendez-Lopez
repeatedly responded that he understood the agreement’s terms. He also testified that he can “read
and understand” English, but “cannot write” in English. R. 45, PID 140. At the end of the hearing,
Mendez-Lopez entered his guilty plea, which the district court accepted.
At the sentencing hearing, the district court once again provided Mendez-Lopez with an
interpreter. Applying the sentencing guidelines, the district court found that Mendez-Lopez’s total
offense level was 43, his criminal history category was I, and although his guideline range
“ordinarily would be . . . life imprisonment,” the statutory maximum sentence reduced that range
to thirty years. R. 46, PID 169. The statute also mandated a supervised-release term of from five
years to life. Mendez-Lopez moved for a downward variance from the thirty-year prison sentence, 2 No. 23-6113, United States v. Mendez-Lopez
arguing that a reduced sentence was appropriate because he is a “reliable and trustworthy” worker
who “developed a serious problem with alcohol.” R. 25, PID 69–70. He also noted that he will
likely “be deported” once he is released from prison, so a shorter prison term will pose less “risk
to the American public.” Id. at 70. The district court denied the motion and imposed the thirty-
year prison sentence recommended under the sentencing guidelines. The district court also
imposed a life term of supervised release.
II. Analysis
Mendez-Lopez argues that his plea agreement was not knowing and voluntary and his
sentence is substantively unreasonable. Both arguments are unpersuasive.
A. Knowing and Voluntary Plea Agreement
Mendez-Lopez contends that his plea agreement is invalid because he “did not knowingly
and voluntarily” sign it. Appellant’s Brief at 10. A defendant may “waive any right by means of
a plea agreement,” so long as the waiver is “knowing and voluntary.” United States v. Smith, 960
F.3d 883, 886 (6th Cir. 2020) (cleaned up). Where—as here—a defendant claims that he did not
understand the plea agreement’s terms, this court evaluates the “contemporaneous evidence” of
his knowledge and intent at the time he entered his plea. United States v. Presley, 18 F.4th 899,
905–06 (6th Cir. 2021) (quotation omitted). The parties agree that because Mendez-Lopez did not
raise the “knowing and voluntary” issue in the district court, our review is for plain error. To
prevail on plain-error review, Mendez-Lopez must show “an (1) error (2) that was obvious or clear,
(3) that affected his substantial rights and (4) that affected the fairness, integrity, or public
reputation of the judicial proceedings.” United States v. Hobbs, 953 F.3d 853, 857 (6th Cir. 2020)
(cleaned up). Mendez-Lopez argues that his plea agreement is invalid because of three purported
errors. We disagree. 3 No. 23-6113, United States v. Mendez-Lopez
First, Mendez-Lopez argues that he did not understand the plea agreement’s terms because
he “speaks primarily Spanish.” Appellant’s Brief at 9–10. To begin, it is not “obvious or clear”
from the record that Mendez-Lopez lacked sufficient English skills to understand his plea
agreement. See Hobbs, 953 F.3d at 857. Although the opening brief asserts that Mendez-Lopez
“primarily” speaks Spanish, it makes no concrete representations about Mendez-Lopez’s ability to
read or understand English. Mendez-Lopez had been in the United States for more than twenty
years when he pleaded guilty; he arrived when he was fifteen years old, and he was thirty-six years
old at the hearing. The pre-sentence report states that Mendez-Lopez “speaks Spanish and some
English.” R. 39, PID 123. And Mendez-Lopez testified at the plea hearing that he could “read
and understand” English. R. 45, PID 140.
But even accepting that Mendez-Lopez’s English skills are limited, there is still ample
evidence that Mendez-Lopez understood the terms of the plea agreement when he pleaded guilty.
See Presley, 18 F.4th at 905. A defendant’s “affirmations” about the plea agreement at the plea
hearing can provide evidence that a plea is knowing and voluntary. Id. Indeed, this court has held
that a defendant knowingly and voluntarily pleaded guilty where the district court “carefully
explained” the plea agreement’s terms and the defendant confirmed that he “understood and
agreed.” Smith, 960 F.3d at 886. Such “admissions at the plea hearing” are a “formidable barrier
to later claims that the defendant misunderstood something about the plea.” United States v. Ellis,
115 F.4th 497, 501 (6th Cir. 2024) (quotations omitted).
At Mendez-Lopez’s plea hearing, the prosecutor and the district court—with an interpreter
present to assist—explained each provision of the plea agreement in great detail. Mendez-Lopez
stated that his attorney read the plea agreement to him and answered “[y]es” when the district court
asked whether he understood the agreement’s terms. R. 45, PID 143. The district court asked 4 No. 23-6113, United States v. Mendez-Lopez
whether the prosecutor had “accurately summarize[d]” the agreement, and Mendez-Lopez once
again answered “[y]es.” Id. at 147. Mendez-Lopez also confirmed that the government had not
made any promises outside the plea agreement, that no one had made any threats to force him to
sign the agreement, and that no one had promised him a specific sentence. The district court then
thoroughly described the rights Mendez-Lopez was giving up by pleading guilty. As the district
court did so, it asked Mendez-Lopez several times whether he understood the rights he was
waiving—and each time, Mendez-Lopez confirmed that he did.
An interpreter was present for all these interactions. Yet at no point did Mendez-Lopez
indicate that he was unable to understand the proceedings or the agreement. Nor did he indicate
in any way at the hearing that his purported lack of English skills caused him to be confused about
the plea agreement’s terms when he signed. Instead, he repeatedly affirmed the opposite—stating
again and again under oath that he understood what he had signed. Those “affirmations at the . . .
plea colloquy” provide strong “contemporaneous evidence” that Mendez-Lopez knowingly and
voluntarily entered the plea agreement. See Presley, 18 F.4th at 905–06 (quotation omitted).
This court reached a similar conclusion in United States v. Heraldez-Arangure, 97 F. App’x
528 (6th Cir. 2004) (order). There, the defendant, who was “marginally conversant in English,”
argued that the district court had failed ensure that he understood the plea agreement’s terms. Id.
at 530. This court held there was no plain error because “a Spanish-language interpreter was
provided,” “[t]he parties faithfully recited in open court the terms” of the plea agreement, and the
district court made “painstaking efforts . . . to provide [the defendant] with a meaningful dialogue”
about the rights he was giving up. Id. Just so here. See also, e.g., United States v. Ibarra–Coronel,
517 F.3d 1218, 1222–23 (10th Cir. 2008) (defendant’s plea was knowing and voluntary because
“[a] court interpreter’s services were made available and employed” at the plea hearing and the 5 No. 23-6113, United States v. Mendez-Lopez
defendant “failed to indicate . . . that her inability to speak or read English compromised her
understanding of the plea agreement”); United States v. Diaz-Vargas, 35 F.3d 1221, 1225–26 (7th
Cir. 1994) (defendant’s plea was knowing and voluntary despite his “tenuous grasp of the English
language” because “the court provided . . . an interpreter” at the plea hearing); United States v.
Ortiz-Garcia, 383 F. App’x 119, 127 (3d Cir. 2010) (defendant’s plea was knowing and voluntary
because he confirmed that he “agreed to the contents of the plea agreement” at the plea hearing,
where he “had the benefit of an interpreter”).
Further, Mendez-Lopez has not shown that any purported error “affected his substantial
rights.” Hobbs, 953 F.3d at 857 (cleaned up). Where a defendant claims he did not understand
the plea agreement, proving this element requires showing “a reasonable probability” that the
defendant “would not have entered the plea” if he had sufficiently understood the agreement’s
terms. Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004)). In analyzing
this element, a court “should not upset a plea solely because of post hoc assertions from a defendant
about how he would have pleaded.” Id. (quoting Lee v. United States, 582 U.S. 357, 368 (2017)).
Rather, it should “look to contemporaneous evidence to substantiate a defendant’s expressed
preferences.” Id. (quotation omitted).
Here, Mendez-Lopez does not even expressly state in his appellate brief that he would not
have entered the plea had he understood the agreement. And it is unclear how he could make such
an argument. The agreement’s terms and their legal consequences were explained to him in
painstaking detail at the plea hearing—with an interpreter present. Yet Mendez-Lopez stated he
understood those consequences and proceeded to plead guilty. Given that “contemporaneous
evidence,” Mendez-Lopez cannot show a “reasonable probability that . . . he would not have
6 No. 23-6113, United States v. Mendez-Lopez
entered the plea” but for the alleged language barrier. See Hobbs, 953 F.3d at 857 (quotation
omitted).
Second, Mendez-Lopez argues that the plea agreement is invalid because the agreement
contains a “confusing” provision regarding the waiver of his rights to appeal and collaterally attack
his conviction. Appellant’s Brief at 9–10. In its entirety, that provision states:
The Defendant waives the right to appeal the guilty plea and conviction. Except for claims of ineffective assistance of counsel, the Defendant also waives the right to attack collaterally the guilty plea, conviction, and sentence.
R. 16, PID 45. As Mendez-Lopez sees it, this provision is confusing because it waives his “right
to collaterally attack his sentence” but not his “right to appeal his sentence.” Appellant’s Brief at
12. But nothing about this provision is misleading or confusing. Rather, the provision is explicit
about Mendez-Lopez’s appellate and collateral-attack rights. The mere fact that those rights are
not coextensive does not make the agreement unclear.
Further, the district court thoroughly explained this provision at the sentencing hearing.
The district court told Mendez-Lopez that he was “reserving the right to appeal any aspect of the
sentence.” R. 45, PID 153. The district court asked Mendez-Lopez if he wanted the court “to go
over that again,” and Mendez-Lopez answered, “[n]o, it’s fine.” Id. at 153–54. The district court
then told Mendez-Lopez that he was “waiving the right to attack collaterally . . . the sentence.” Id.
at 154. And the district court explained that a collateral-attack waiver means “you’re giving up
the right to file a separate lawsuit or separate motion to challenge these matters,” “[s]ometimes . . .
referred to as a habeas motion or habeas proceeding.” Id. And when the district court later asked,
“[a]gain, do you understand” that a guilty plea “would waive or give up the rights . . . just
described,” Mendez-Lopez answered “[y]es.” Id. at 157. Simply put, there is no
7 No. 23-6113, United States v. Mendez-Lopez
“contemporaneous evidence” that Mendez-Lopez found this provision confusing or misleading, as
he now asserts on appeal. See Presley, 18 F.4th at 905 (quoting Hobbs, 953 F.3d at 857).
Third, Mendez-Lopez argues that the district court failed to comply with Federal Rule of
Criminal Procedure 11(b)(1)(N), which requires a district court to “determine that the defendant
understands . . . the terms of any plea-agreement provision waiving the right to appeal or to
collaterally attack the sentence.” Mendez-Lopez does not develop his argument that Rule 11 has
been violated; he merely states that “the trial court gave limited focus and did not sufficiently
question the Defendant on his understanding of the terms.” Appellant’s Brief at 19.
Under Rule 11, a provision waiving appellate or collateral-attack rights must be “discussed
in open court” by either the district court or the prosecutor, and the district court must ensure that
the defendant understands the provision. United States v. Sharp, 442 F.3d 946, 952 (6th Cir. 2006).
The district court need not “ask a particular question about the appellate-waiver provision”—
rather, it need only “ascertain that the defendant understands the terms of the plea agreement”
generally. Id. at 951. Here, the appeal and collateral-attack waiver was “discussed in open court”
by both the district court and the prosecutor. Mendez-Lopez stated that the prosecutor correctly
summarized the plea agreement, and he confirmed that he understood the rights he was waiving
by pleading guilty, as “described” by the district court. That is all Rule 11 requires.
B. Substantive Reasonableness of the Sentence
Mendez-Lopez next argues that his prison sentence and supervised release term are
substantively unreasonable. A substantive-unreasonableness challenge by a defendant is “a claim
that a sentence is too long.” United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). A
sentence is substantively unreasonable if the district court “selects the sentence arbitrarily,” “bases
the sentence on impermissible factors,” “fails to consider pertinent § 3553(a) factors,” or “gives 8 No. 23-6113, United States v. Mendez-Lopez
an unreasonable amount of weight to any pertinent factor.” United States v. Walls, 546 F.3d 728,
736 (6th Cir. 2008) (cleaned up). We presume that a “within-guidelines sentence” is substantively
reasonable unless a defendant proves otherwise. United States v. Vonner, 516 F.3d 382, 389 (6th
Cir. 2008) (en banc). And we review a substantive-unreasonableness challenge for abuse of the
district court’s sentencing discretion. United States v. Massey, 663 F.3d 852, 856 (6th Cir. 2011).
Mendez-Lopez first argues that his sentence of thirty years in prison and a life term of
supervised release is substantively unreasonable because the district court did not sufficiently
consider “the fact that [he] [i]s a noncitizen,” making him ineligible for certain early-release
programs. Appellant’s Brief at 24–26. Mendez-Lopez notes that noncitizen prisoners are
generally ineligible for programs that permit early release from prison, such as “community
confinement” and “furlough.” Id. Thus, where a noncitizen receives the same sentence as a
citizen, the noncitizen will generally end up spending more time in prison. As Mendez-Lopez sees
it, the district court abused its discretion by failing to consider this “disparate treatment” as a
mitigating factor in calculating the sentence. Id.
But Mendez-Lopez did not raise this mitigating factor in the district court. A district court
need only analyze the particular mitigating factors a party raised during sentencing. Walls, 546
F.3d at 737; United States v. Roser, 529 F. App’x 450, 453–54 (6th Cir. 2013) (“[W]hen a
defendant fails to raise a specific mitigating factor at sentencing, the district court’s failure to
consider the unargued factor is not an abuse of discretion.”). Here, Mendez-Lopez moved in the
district court for a downward variance from the thirty-year guideline-recommended sentence. That
motion primarily argued that Mendez-Lopez was a “reliable and trustworthy” worker who was
“remorseful” and had “a serious problem with alcohol.” R. 25, PID 69–70. The motion did state
that Mendez-Lopez could be “deported” after serving his sentence—but only to support the 9 No. 23-6113, United States v. Mendez-Lopez
assertion that he would not be a danger to the “American public” if he received a shorter prison
term, since he would be removed from the country upon release. Id. at 70. Nowhere in the district
court record did Mendez-Lopez say anything about noncitizens being ineligible for early-release
programs.
But even if that passing reference to deportation sufficiently raised the issue, the sentence
is still substantively reasonable. Where a defendant raises a mitigating factor, a district court need
only “explain[] why it would not vary below the Guidelines” based on that factor. United States
v. Ushery, 785 F.3d 210, 224 (6th Cir. 2015). A defendant’s mere disagreement with the district
court’s rejection of a mitigating factor does not “justify reversal on substantive-reasonableness
grounds.” Id.
Here, the district court noted that Mendez-Lopez “filed a motion for a variance,” R. 46,
PID 167, and that he may be “deported” after his sentence, id. at 180. But the district court found
that any “variance below” the thirty-year guideline sentence would be inappropriate because thirty
years was the “minimum sentence” the court could impose considering the Section 3553(a) factors.
Id. at 179. Specifically, the district court found that thirty years “is certainly not greater than
necessary and may not be sufficient” to punish Mendez-Lopez’s “unconscionable conduct.” Id. at
176. Anything less would not “reflect the seriousness of this particular offense,” given that
Mendez-Lopez harmed a child “physically, emotionally, [and] mentally” and “betrayed his
family.” Id. at 176–77. The district court denied the variance motion “for th[ose] reasons.” Id. at
179. In other words, to the extent Mendez-Lopez could be said to have raised his noncitizen status
in the variance motion, the district court “considered” the motion and “explained why it would not
vary below the Guidelines” based on that motion. Ushery, 785 F.3d at 224. Mendez-Lopez may
10 No. 23-6113, United States v. Mendez-Lopez
“disagree[] with the district court’s conclusion,” but “that is an insufficient basis to justify reversal
on substantive-reasonableness grounds.” Id.
Mendez-Lopez responds by citing several cases in which appellate courts have discussed
a district court’s discretion to consider a defendant’s noncitizen status as a mitigating factor in
sentencing. See United States v. Navarro-Diaz, 420 F.3d 581, 588 (6th Cir. 2005); United States
v. Davoudi, 172 F.3d 1130, 1134 (9th Cir. 1999); United States v. Farouil, 124 F.3d 838, 846 (7th
Cir. 1997). But those cases hold at most that a district court is “free to consider” a defendant’s
lack of citizenship under its “broad discretion” at sentencing to analyze “any unusual or
exceptional factor present in the case.” See, e.g., Farouil, 124 F.3d at 847 (quotation omitted).
Those opinions do not support the argument Mendez-Lopez makes here: that a district court abuses
its discretion when it deems the defendant’s noncitizen status an insufficient reason to vary
downward from the guideline sentence.
Second, Mendez-Lopez argues that his term of supervised release is substantively
unreasonable because it is “contrary to the purpose and intent of supervised release.” Appellant’s
Brief at 26–27. As Mendez-Lopez sees it, the “primary function of supervised release” is “re-
integration in the community,” so he believes there is no reason to order a term of supervised
release for a noncitizen who may be deported after leaving prison. Id.
This argument is mistaken. Supervised release serves “dual goals”: (1) “the rehabilitation
of the defendant,” and (2) “the protection of the public.” United States v. Lay, 583 F.3d 436, 450
(6th Cir. 2009) (quoting United States v. Bortels, 962 F.2d 558, 560 (6th Cir. 1992)). A term of
supervised release is thus substantively reasonable if it is “reasonably related” to these goals, a
standard which allows the district court to “balance[] the legitimate interests of society against [the
defendant’s] liberty interests.” Id. (quotations omitted). This balance heavily favors “protect[ing] 11 No. 23-6113, United States v. Mendez-Lopez
the public from potential recidivism” where a defendant has committed “sexual offenses against
minors” because the “public has an obvious interest” in preventing that defendant from having
“opportunities to commit such crimes again.” Id. Thus, to prevail here, Mendez-Lopez must show
that his supervised release term is “unrelated to public safety.” Id. at 449.
Mendez-Lopez makes no such showing. The district court imposed a life term of
supervised release—along with several conditions designed to keep Mendez-Lopez away from
children—because it believed that Mendez-Lopez “poses too much of a danger” to the public.
R. 46, PID 178, 179–85. The district court noted that this term of supervised release would be
“necessary” to protect the public if Mendez-Lopez were “for some reason not deported” after his
prison sentence, or if he “is deported and re-enters.” Id. at 180. Faced with those express findings,
Mendez-Lopez does not attempt to argue that his supervised release terms are unrelated to public
safety. Rather, he argues only that supervised release is unjustified because there is no need to re-
integrate him into the community.
Mendez-Lopez also argues that the district court abused its discretion because the
sentencing guidelines “discourage[]” courts from imposing supervised release on a defendant who
may be deported. Appellant’s Brief at 27. In full context, Sentencing Guideline 5D1.1(c) states
that a district court “ordinarily should not impose a term of supervised release” on a “deportable
alien” “in a case in which supervised release is not required by statute.” U.S. Sent’g Guidelines
Manual § 5D1.1(c) (U.S. Sent’g Comm’n 2024). Here, however, supervised release is required by
statute: 18 U.S.C. § 3583(k) requires supervised release in “any term of years not less than 5, or
life.” So Guideline 5D1.1(c) does not apply—i.e., this is not “a case in which supervised release
is not required by statute.” Id.
12 No. 23-6113, United States v. Mendez-Lopez
Further, the commentary to the guidelines clarifies that a district court should impose
supervised release on a defendant who may be deported “if the court determines it would provide
an added measure of deterrence and protection based on the facts and circumstances of a particular
case.” Id. cmt. n. 5. That is precisely what the district court did here: Prior to sentencing, it stated
that it would base its determination on the “need to protect the public from any future potential
crimes.” R. 45, PID 152. And at sentencing, it imposed the thirty-year prison term to provide
“protection for the public while the defendant is incarcerated” and the lifelong supervised release
to provide “further protection,” which it found “necessary in this case for . . . protection of the
public.” R. 46, PID 178–80. Mendez-Lopez does not explain why that conclusion is substantively
unreasonable. See, e.g., United States v. Rodriguez-Lopez, 561 F. App’x 627, 629 (9th Cir. 2014)
(citing § 5D1.1(c) cmt. n. 5) (holding that a district court did not abuse its discretion by imposing
supervised release on a deportable noncitizen because the district court found a case-specific need
“to provide adequate deterrence”).
III. Conclusion
For the foregoing reasons, we AFFIRM.