United States v. Otero-Correa

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 14, 2025
• Docket: 24-1466
• Status: Unpublished

Opinion

Appellate Case: 24-1466 Document: 28-1 Date Filed: 03/14/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 14, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-1466 (D.C. No. 1:23-CR-00106-CNS-21) JOSE ABEL OTERO-CORREA, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

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

Jose Abel Otero-Correa pleaded guilty to engaging in drug and

money-laundering conspiracies. Varying downward from the Guidelines range, the

district court imposed a 96-month sentence. Mr. Otero-Correa appealed, and the

government has moved to enforce the appeal waiver contained in his plea agreement.

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

(per curiam). Mr. Otero-Correa has opposed the motion to enforce, and the

government has replied in support of its motion.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-1466 Document: 28-1 Date Filed: 03/14/2025 Page: 2

Hahn directs us to consider (1) whether the appeal falls within the scope of the

waiver; (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. Otero-Correa argues only that enforcing the waiver would result in a

miscarriage of justice. We need not address a Hahn element that the defendant does

not contest, see United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005), so we

focus on the miscarriage-of-justice element.

Mr. Otero-Correa asserts that enforcing the waiver “would constitute a

miscarriage of justice because the district court issued a substantively unreasonable

sentence. While the district court did vary downward from the guideline range, it

abused its discretion when it did not issue an even lower sentence based upon the

particular facts of this case.” Aplt. Resp. at 2. Faulting the district court for

calculating the Guidelines range based on pure methamphetamine rather than a

methamphetamine mixture, he concludes that the district court imposed an “unduly

harsh sentence” because it made “an error of law.” Id. at 4.

In Hahn, we held that only four specified categories of error satisfy the

miscarriage-of-justice element: (1) “the district court relied on an impermissible

factor such as race”; (2) “ineffective assistance of counsel in connection with the

negotiation of the waiver renders the waiver invalid”; (3) “the sentence exceeds the

statutory maximum”; or (4) “the waiver is otherwise unlawful.” 359 F.3d at 1327

(internal quotation marks omitted). Mr. Otero-Correa’s argument that the sentence is

substantively unreasonable does not satisfy any of these categories.

2 Appellate Case: 24-1466 Document: 28-1 Date Filed: 03/14/2025 Page: 3

To the extent Mr. Otero-Correa implicitly contends the waiver is otherwise

unlawful, we have rejected the proposition that an error in calculating a sentence

makes an appeal waiver unlawful. “[T]he miscarriage-of-justice exception . . . 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) (citation and internal quotation marks omitted). “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.”

Id. at 1213; see also United States v. Leyva-Matos, 618 F.3d 1213, 1217 (10th Cir.

2010) (“An appeal waiver is not ‘unlawful’ merely because the claimed error would,

in the absence of waiver, be appealable. To so hold would make a waiver an empty

gesture.” (internal quotation marks omitted)). Accordingly, Mr. Otero-Correa’s

assertion that the district court made a legal error in calculating his sentence fails to

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

We grant the government’s motion to enforce the appeal waiver and dismiss

this appeal.

Entered for the Court

Per Curiam