FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 6, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2001 (D.C. No. 1:16-CR-04357-JAP-1) FRANCISCO GUZMAN-PLATEADO, (D. N.M.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, KELLY, and McHUGH, Circuit Judges. _________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in Francisco Guzman-Plateado’s plea agreement. Exercising
jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal.
BACKGROUND
Guzman-Plateado pleaded guilty to reentry of a removed alien, in violation of
8 U.S.C. §§ 1326(a) and (b), and possession with intent to distribute heroin, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). The written plea agreement
included the following appeal waiver:
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C. § 3742 afford a defendant the right to appeal a conviction and the sentence imposed. Acknowledging that, the Defendant knowingly waives the right to appeal the Defendant’s conviction(s) and any sentence . . . at or under the maximum statutory penalty authorized by law. In addition, the Defendant agrees to waive any collateral attack on [his] conviction(s) and any sentence . . . except on the issue of defense counsel’s ineffective assistance. The appellate waiver in this plea agreement does not bar the defendant from seeking a sentence reduction pursuant to 18 U.S.C. § 3582(c), should the Sentencing Commission so authorize.
Mot. to Enforce, Ex. 1 at 9 (emphasis added). The agreement listed the elements of
both offenses and described the evidence against him, and by signing it,
Guzman-Plateado acknowledged that those facts provided a factual basis for his
guilty pleas. Id. at 3-5. The agreement also included a detailed explanation of the
possible penalties for each conviction and the immigration consequences of his plea.
Id. at 2-3, 8-9.
The court provided an interpreter for Guzman-Plateado at his change-of-plea
hearing, and the interpreter was used throughout the hearing. Guzman-Plateado
confirmed that he had read and discussed the written plea agreement with counsel
before signing it. He assured the court that he understood “each and every term of
[the] plea agreement,” id., Ex. 2 at 10, and that his plea was voluntary, id. at 16.
After the court reminded him of the elements of the offenses, possible penalties, and
immigration consequences of the plea, they had the following colloquy about the
appeal waiver:
THE COURT: [Y] our plea agreement contains a waiver of appeal rights. Specifically, you’re giving up your right to appeal your conviction and any sentence including any fine at or under the
2 maximum statutory penalty authorized by law. Do you understand your waiver of appeal rights, sir?
THE DEFENDANT: Yes.
Id. at 15. Guzman-Plateado repeatedly declined to ask questions when given the
opportunity to do so, and when the court asked him toward the end of the advisement
whether he had “any questions for [the court] or [his] attorney before I ask you how
you plead to the charge[s],” he responded “No.” Id. at 16.
At the sentencing hearing, the court adopted the guidelines range the parties
contemplated in the plea agreement and sentenced Guzman-Plateado within that
range to concurrent 70-month prison terms.
Despite his broad appeal waiver, Guzman-Plateado now appeals. He opposes
the government’s motion to enforce the appeal waiver on the ground that his plea was
not knowingly and voluntarily.
DISCUSSION
Whether a defendant’s appeal waiver is enforceable is a question of law we
review de novo. United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir.
2008). 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.” United States v. Hahn,
359 F.3d 1315, 1325 (10th Cir. 2004) (en banc).
3 Guzman-Plateado concedes that the appeal falls within the scope of the appeal
waiver, and he does not claim that enforcement of his plea would be a miscarriage of
justice. We thus limit our analysis to the question whether his appeal waiver was
knowing and voluntary. When making that determination,
Hahn instructs us to look to the plea agreement and the explanation the district court provided to the defendant. Thus, we ordinarily look to (1) whether the language of the plea agreement states that the defendant entered the agreement knowingly and voluntarily; and (2) whether the district court conducted an adequate [Rule] 11 colloquy.
United States v. Rollings, 751 F.3d 1183, 1188 (10th Cir. 2014) (internal quotation
marks omitted). “[I]f the defendant did not voluntarily enter into the agreement, the
appellate waiver subsumed in the agreement also cannot stand.” Id. at 1189.
Guzman-Plateado does not claim he did not understand the appeal waiver
itself. Instead, he claims his plea was not knowing and voluntary because he did not
understand the elements of the possession-with-intent-to-distribute charge.
Specifically, he claims counsel did not give him a Spanish-language version of the
written plea agreement and could not provide an adequate elemental advisement
because counsel did not speak Spanish or use an interpreter.
But at the change-of-plea hearing, through the interpreter, Guzman-Plateado
responded “Yes” when the court asked whether his attorney had read the plea
agreement to him “word-for-word in its entirety in Spanish.” Mot. to Enforce, Ex. 2
at 10. He also acknowledged that he had read a Spanish-language version of the
superseding indictment, which detailed the elements of both offenses. Id. at 4-5.
In addition, the prosecutor explained the elements through the interpreter and
4 Guzman-Plateado confirmed that he understood. Id. at 5-7. Although he told the
court during its factual-basis questioning that he is an addict and wanted the drugs for
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 6, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2001 (D.C. No. 1:16-CR-04357-JAP-1) FRANCISCO GUZMAN-PLATEADO, (D. N.M.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, KELLY, and McHUGH, Circuit Judges. _________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in Francisco Guzman-Plateado’s plea agreement. Exercising
jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal.
BACKGROUND
Guzman-Plateado pleaded guilty to reentry of a removed alien, in violation of
8 U.S.C. §§ 1326(a) and (b), and possession with intent to distribute heroin, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). The written plea agreement
included the following appeal waiver:
* 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. The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C. § 3742 afford a defendant the right to appeal a conviction and the sentence imposed. Acknowledging that, the Defendant knowingly waives the right to appeal the Defendant’s conviction(s) and any sentence . . . at or under the maximum statutory penalty authorized by law. In addition, the Defendant agrees to waive any collateral attack on [his] conviction(s) and any sentence . . . except on the issue of defense counsel’s ineffective assistance. The appellate waiver in this plea agreement does not bar the defendant from seeking a sentence reduction pursuant to 18 U.S.C. § 3582(c), should the Sentencing Commission so authorize.
Mot. to Enforce, Ex. 1 at 9 (emphasis added). The agreement listed the elements of
both offenses and described the evidence against him, and by signing it,
Guzman-Plateado acknowledged that those facts provided a factual basis for his
guilty pleas. Id. at 3-5. The agreement also included a detailed explanation of the
possible penalties for each conviction and the immigration consequences of his plea.
Id. at 2-3, 8-9.
The court provided an interpreter for Guzman-Plateado at his change-of-plea
hearing, and the interpreter was used throughout the hearing. Guzman-Plateado
confirmed that he had read and discussed the written plea agreement with counsel
before signing it. He assured the court that he understood “each and every term of
[the] plea agreement,” id., Ex. 2 at 10, and that his plea was voluntary, id. at 16.
After the court reminded him of the elements of the offenses, possible penalties, and
immigration consequences of the plea, they had the following colloquy about the
appeal waiver:
THE COURT: [Y] our plea agreement contains a waiver of appeal rights. Specifically, you’re giving up your right to appeal your conviction and any sentence including any fine at or under the
2 maximum statutory penalty authorized by law. Do you understand your waiver of appeal rights, sir?
THE DEFENDANT: Yes.
Id. at 15. Guzman-Plateado repeatedly declined to ask questions when given the
opportunity to do so, and when the court asked him toward the end of the advisement
whether he had “any questions for [the court] or [his] attorney before I ask you how
you plead to the charge[s],” he responded “No.” Id. at 16.
At the sentencing hearing, the court adopted the guidelines range the parties
contemplated in the plea agreement and sentenced Guzman-Plateado within that
range to concurrent 70-month prison terms.
Despite his broad appeal waiver, Guzman-Plateado now appeals. He opposes
the government’s motion to enforce the appeal waiver on the ground that his plea was
not knowingly and voluntarily.
DISCUSSION
Whether a defendant’s appeal waiver is enforceable is a question of law we
review de novo. United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir.
2008). 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.” United States v. Hahn,
359 F.3d 1315, 1325 (10th Cir. 2004) (en banc).
3 Guzman-Plateado concedes that the appeal falls within the scope of the appeal
waiver, and he does not claim that enforcement of his plea would be a miscarriage of
justice. We thus limit our analysis to the question whether his appeal waiver was
knowing and voluntary. When making that determination,
Hahn instructs us to look to the plea agreement and the explanation the district court provided to the defendant. Thus, we ordinarily look to (1) whether the language of the plea agreement states that the defendant entered the agreement knowingly and voluntarily; and (2) whether the district court conducted an adequate [Rule] 11 colloquy.
United States v. Rollings, 751 F.3d 1183, 1188 (10th Cir. 2014) (internal quotation
marks omitted). “[I]f the defendant did not voluntarily enter into the agreement, the
appellate waiver subsumed in the agreement also cannot stand.” Id. at 1189.
Guzman-Plateado does not claim he did not understand the appeal waiver
itself. Instead, he claims his plea was not knowing and voluntary because he did not
understand the elements of the possession-with-intent-to-distribute charge.
Specifically, he claims counsel did not give him a Spanish-language version of the
written plea agreement and could not provide an adequate elemental advisement
because counsel did not speak Spanish or use an interpreter.
But at the change-of-plea hearing, through the interpreter, Guzman-Plateado
responded “Yes” when the court asked whether his attorney had read the plea
agreement to him “word-for-word in its entirety in Spanish.” Mot. to Enforce, Ex. 2
at 10. He also acknowledged that he had read a Spanish-language version of the
superseding indictment, which detailed the elements of both offenses. Id. at 4-5.
In addition, the prosecutor explained the elements through the interpreter and
4 Guzman-Plateado confirmed that he understood. Id. at 5-7. Although he told the
court during its factual-basis questioning that he is an addict and wanted the drugs for
his personal use, he admitted that he “intended to share that heroin with another
person,” and that there was thus a factual basis for his plea. Id. at 17-19. And when
the prosecutor explained to the court after that colloquy that the amount of drugs
found in Guzman-Plateado’s home was “not consistent with personal use” and was
instead “consistent with an intent to distribute,” Guzman-Plateado agreed that the
government would be able to prove those facts if the case went to trial. Id. at 19.
On this record, we conclude that Guzman-Plateado has failed to meet his burden of
showing that his plea, and in particular the appeal waiver, was not knowing and
voluntary.
To the extent Guzman-Plateado claims his attorney was ineffective, that claim
also falls within the scope of the appeal waiver, which contemplates that an
ineffective assistance of counsel claim could be raised in a “collateral attack to [his]
conviction(s) and [] sentence.” Mot. to Enforce, Ex. 1 at 9; see also United States v.
Porter, 405 F.3d 1136, 1144 (10th Cir. 2005) (explaining that the rule generally
barring ineffective assistance claims on direct review “applies even where a
defendant seeks to invalidate an appellate waiver based on ineffective assistance of
counsel”); Hahn, 359 F.3d at 1327 n.13 (“Generally, we only consider ineffective
assistance of counsel claims on collateral review. Our holding today does not disturb
this longstanding rule.” (citation omitted)).
5 CONCLUSION
Accordingly, we grant the government’s motion to enforce the appeal waiver
and dismiss the appeal.
Entered for the Court Per Curiam