United States v. Najera Montoya

• Court: Court of Appeals for the Second Circuit
• Decided: November 28, 2023
• Docket: 22-3231
• Status: Unpublished

Opinion

22-3231-cr United States v. Najera Montoya

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of November, two thousand twenty-three.

PRESENT: AMALYA L. KEARSE, GUIDO CALABRESI, ALISON J. NATHAN, Circuit Judges. _____________________________________

United States of America

Appellee,

v. No. 22-3231-cr

Fredy Renan Najera Montoya

Defendant-Appellant.

_____________________________________ FOR DEFENDANT-APPELLANT: RICHARD C. KLUGH, Law Offices of Richard Klugh, Miami, FL.

FOR APPELLEE: JASON RICHMAN (Elinor Tarlow, Jacob Gutwillig, Hagan Scotten, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

Appeal from a judgment of conviction of the United States District Court for

the Southern District of New York (Gardephe, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the appeal is DISMISSED.

Defendant-Appellant Fredy Renan Najera Montoya appeals from the

district court’s judgment, entered on October 14, 2022, after pleading guilty

pursuant to a plea agreement to (1) conspiring to import cocaine into the United

States, and to distribute cocaine on board a U.S.-registered aircraft, in violation of

21 U.S.C. §§ 963, 952(a), 959(a), 959(c), 960(a)(1), 960(a)(3), and 960(b)(1)(B), (2)

carrying firearms and using firearms during and in relation to, and possessing

firearms in furtherance of, drug trafficking, in violation of 18 U.S.C. §§ 924(c)(1)(A)

and 924(c)(1)(B)(ii), and (3) conspiring to carry and use machineguns and

destructive devices during and in relation to, and to possess machineguns and

2 destructive devices in furtherance of, drug trafficking, in violation of 18 U.S.C. §§

924(o) and 924(c)(1)(B)(ii). Najera was sentenced by the district court to thirty

years’ imprisonment, fined $10 million and ordered to pay $39 million in

forfeiture. We assume the parties’ familiarity with the underlying facts and the

record of prior proceedings, to which we refer only as necessary to explain our

decision.

On appeal, Najera argues that the district court erred by (1) denying him a

downward adjustment under U.S.S.G. § 3E1.1, and (2) relying on the government’s

basis for venue under 18 U.S.C. § 3238. We conclude that Najera waived his right

to raise both arguments.

Through the appeal waiver in his plea agreement, Najera has waived any

challenge against his sentence. Najera waived his right to appeal “any sentence

below the Stipulated Guidelines Range of life imprisonment.” Plea Agreement at

7. Because Najera was sentenced to thirty years’ imprisonment, his sentence falls

within the scope of the appellate waiver. “This Court has repeatedly held that a

knowing and voluntary waiver of the right to appeal a sentence is presumptively

enforceable.” United States v. Ojeda, 946 F.3d 622, 629 (2d Cir. 2020). The record

demonstrates that Najera’s waiver was knowing and voluntary. At the plea

3 colloquy, the district court confirmed Najera reviewed the terms of the plea

agreement with his attorney and understood he was waiving his right to appeal

any sentence below life imprisonment.

The “exceptions to the presumption of the enforceability of a waiver . . .

occupy a very circumscribed area of our jurisprudence.” United States v. Gomez-

Perez, 215 F.3d 315, 319 (2d Cir. 2000). Najera does not provide any reasons in his

opening brief for why he is not bound by the appeal waiver, which may itself

constitute waiver. See United States v. Yousef, 327 F.3d 56, 115 (2d Cir. 2003) (“We

will not consider an argument raised for the first time in a reply brief.”). But even

if not waived, the arguments raised in his reply brief are meritless.

In his reply, Najera argues that he is entitled to appeal the district court’s

denial of the downward adjustment for acceptance of responsibility under

U.S.S.G. § 3E1.1 because the plea agreement did not bar him from seeking the

downward adjustment. But whether the plea agreement permitted him to seek

the reduction has no bearing on the scope of his appeal waiver. By its terms, the

appeal waiver barred Najera from appealing “any sentence below the Stipulated

Guidelines Range of life imprisonment.” Plea Agreement at 7. This includes a

challenge against the district court’s denial of a sentence reduction. See United

4 States v. Riggi, 649 F.3d 143, 147–48 (2d Cir. 2011) (“We also enforced an appeal

waiver notwithstanding the defendant's claim that the sentencing court failed to

make certain downward departures prior to sentencing.”).

Najera further argues that the government cannot enforce the appeal waiver

because it breached the plea agreement by opposing his argument at sentencing

that he was entitled to an acceptance of responsibility reduction. Although the

stipulated guidelines calculation contained within the plea agreement did not

include a reduction for acceptance of responsibility, Najera emphasizes that the

plea agreement permitted the government to seek denial of the reduction “if the

defendant fails clearly to demonstrate acceptance of responsibility, to the

satisfaction of the Government, through his allocution and subsequent conduct

prior to the imposition of [his] sentence.” Plea Agreement at 6. Najera contends

that the government breached the terms of the plea agreement by relying upon his

pre-plea, rather than his post-plea, conduct to oppose his request for a downwards

adjustment. But the plea agreement also permitted the government to “answer

any inquiries and to make all appropriate arguments” if the district court

contemplated any “adjustments, departures, or calculations different from those

stipulated to” in the plea agreement. Id. To the extent that the government

5 referenced or discussed Najera’ pre-plea conduct, it did so for the purpose of

responding to Najera’s request for the acceptance of responsibility reduction,

which was not stipulated to in the agreement. We therefore conclude that the

government did not breach the terms of the plea agreement.

Najera also makes various attempts to characterize the language of the

appeal waiver as ambiguous to argue that it should not be enforced against him.

But none of the alleged ambiguities identified by Najera allow the conclusion that

his present sentencing appeal is permitted. For example, he argues that the

sentence structure of the waiver suggests that he cannot file a direct appeal of any

sentence, not just sentences below life imprisonment. Even if the provision is

ambiguous, there is no reading in which it would permit an appeal of a sentence

less than life imprisonment as is the case here. He also argues that the plea

agreement is ambiguous as to whether he may appeal a $39 million forfeiture

order. But this is irrelevant because Najera has not contended that there was an

error in either the fine or the forfeiture components of his sentence. Accordingly,

the appeal waiver is enforceable and covers Najera’s challenge to the district

court’s denial of a downward adjustment.

6 Having entered a valid guilty plea, Najera’s objection as to venue is also

waived. See United States v. Calderon, 243 F.3d 587, 590 (2d Cir. 2001). “It is well

settled that a defendant who knowingly and voluntarily enters a guilty plea

waives all non-jurisdictional defects in the prior proceedings.” United States v.

Garcia, 339 F.3d 116, 117 (2d Cir. 2003). Because “[v]enue is not jurisdictional,” a

valid guilty plea is a waiver of any challenge to venue. Calderon, 243 F.3d at 590.

We reject Najera’s argument that his venue challenge is not waived because

the district court failed to confirm that Najera was knowingly and voluntarily

waiving his right to challenge the government’s basis for venue. Rule 11 does not

require the district court to inform Najera of all possible defenses to his conviction

such as a potential venue defense. See Fed. R. Crim. P. 11; Calderon, 243 F.3d at

589. “Our decisions have not suggested that conscious waiver is necessary with

respect to each potential defense relinquished by a plea of guilty.” United States

v. Broce, 488 U.S. 563, 573 (1989). Accordingly, Najera’s objection to venue is

waived.

* * *

7 We have considered Najera’s remaining arguments and find them to be

without merit. For the reasons set forth above, we DISMISS the appeal.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court