United States v. Sierra

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 10, 2022
• Docket: 21-2130
• Status: Unpublished

Opinion

Appellate Case: 21-2130 Document: 010110643590 Date Filed: 02/10/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 10, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-2130 (D.C. No. 2:21-CR-00727-KWR-1) YVETTE MARIE SIERRA, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, KELLY, and MORITZ, Circuit Judges. _________________________________

This matter is before the court on the government’s motion to enforce the

appeal waiver in Yvette Marie Sierra’s plea agreement pursuant to United States v.

Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam), and 10th Cir. R.

27.3(a)(1)(d). Exercising jurisdiction under 28 U.S.C. § 1291, we grant the motion

and dismiss the appeal.

Ms. Sierra pleaded guilty to conspiracy to transport illegal aliens, in violation

of 8 U.S.C. § 1324(a)(1)(A)(v)(I). The plea agreement included a broad waiver of

appellate rights, including the right to appeal any sentence “at or under the maximum

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-2130 Document: 010110643590 Date Filed: 02/10/2022 Page: 2

statutory penalty authorized by law.” Mot. to Enforce, Exh. 1 at 7. As pertinent

here, the agreement provided a detailed explanation of the possible penalties and the

parties’ stipulations to an offense level of 12, a three-level enhancement for

conspiring to transport more than six aliens, and downward adjustments for

acceptance of responsibility and because Ms. Sierra was a minor participant in the

conspiracy. Ms. Sierra acknowledged that the parties’ stipulations were not binding

on the district court and that whether to accept them was “a matter solely within the

discretion of the Court after it has reviewed the presentence report [PSR].” Id. at 6.

She also acknowledged that although she admitted to conspiring to transport only 13

aliens as the factual basis for her plea, the court could rely on facts in the presentence

report to determine her sentence. Both by signing the written plea agreement and in

her responses to the court’s questions at the change of plea hearing, Ms. Sierra

acknowledged that her plea was knowing and voluntary, and that she understood its

consequences, including the possible sentences and the appeal waiver.

The PSR revealed additional facts about Ms. Sierra’s participation in the

conspiracy, including that she admitted to border patrol agents that at one point, there

were close to 35 aliens staying in her home. It thus included the factual finding that

she conspired to transport and harbor more than 25 undocumented aliens. As a result

of that finding, the PSR’s offense level computation tracked the parties’ stipulations

in the plea agreement except that it recommended a six-level increase because the

offense involved transporting and harboring over 25 aliens, instead of the stipulated

three-level enhancement for an offense involving between 6 and 24 aliens. After the

2 Appellate Case: 21-2130 Document: 010110643590 Date Filed: 02/10/2022 Page: 3

enhancement and stipulated downward adjustments, the PSR recommended a total

offense level of 12, resulting in a guidelines range of 10 to 16 months’ imprisonment.

Ms. Sierra did not file written objections to the PSR, and defense counsel told

the court at the sentencing hearing that he had no objections to the PSR.1 The court

adopted the PSR’s factual findings and guidelines-range calculation. The prosecutor

then commented that Ms. Sierra “transported and housed a significant amount of

illegal aliens,” and asked the court to impose a low-end guidelines sentence based on

“the number of illegal aliens” and “the way that presentence report reads.” Mot. to

Enforce, Exh. 3 at 5. Noting the finding in the PSR that Ms. Sierra “conspired with

others to transport and house at least 25 undocumented aliens,” the court sentenced

her to 10 months in prison—the lowest sentence in the guideline-range. Id.

Despite receiving a sentence well below the statutory ten-year maximum, see

8 U.S.C. § 1324(a)(1)(B)(i), Ms. Sierra filed a notice of appeal. Her docketing

statement indicates that she intends to argue that the prosecution breached the plea

agreement and to challenge the reasonableness of her sentence.

1 Contrary to Ms. Sierra’s contention, she did not effectively object to the finding in the PSR by relying on her factual admission in the plea agreement during her interview with the Probation Officer who prepared the PSR. See Fed. R. Crim. P. 32(f)(1) (providing that that a party who wants to object to a PSR “must state in writing any objections, including objections to material information [and] sentencing guideline ranges … contained in or omitted from the report” (emphasis added)); United States v. Shinault, 147 F.3d 1266, 1278 (10th Cir. 1998) (“Failure to object to a fact in a presentence report, or failure to object at the hearing, acts as an admission of fact.” (internal quotation marks omitted)).

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In response to the government’s motion to enforce, Ms. Sierra argues that the

appeal waiver is unenforceable because the government breached the plea

agreement.2 Specifically, she contends the prosecutor breached the agreement by not

urging the court to adopt the parties’ stipulation for a three-level enhancement based

on her admission in the plea agreement about the number of aliens involved, instead

of the six-level enhancement supported by the factual finding in the PSR.

“[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.

Ms. Sierra acknowledges that she did not object to the prosecutor’s comments

or otherwise raise her breach-of-plea-agreement argument the sentencing hearing.

2 The heading of the response cites Anders v. California, 386 U.S. 738 (1967), but the breach-of-plea-agreement contention is not presented as only arguable, and counsel has not moved to withdraw. See id. at 744. Accordingly, we will not treat the filing as an Anders response. 4 Appellate Case: 21-2130 Document: 010110643590 Date Filed: 02/10/2022 Page: 5

We thus review her argument for plain error. See Puckett, 556 U.S. at 133-34;

United States v. Bullcoming, 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 her 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, 732-36 (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. Ms. Sierra cannot meet any of these

requirements.

First, the prosecutor’s comments at the sentencing hearing did not breach the

plea agreement, so Ms. Sierra cannot establish error, much less plain error. The

government stipulated to a three-level enhancement, but nothing in the plea

agreement required the prosecutor to argue for a three-level enhancement at the

sentencing hearing despite facts in the PSR supporting a six-level enhancement. To

the contrary, the agreement provides that “[a]part from the provisions in this plea

agreement, the [government] reserve[s] the[] right[] to assert any position or

argument with respect to the sentence to be imposed, including but not limited to the

applicability of particular sentencing guidelines and adjustments under the

guidelines.” Mot. to Enforce, Exh. 1, at 6. Moreover, the prosecutor did not argue

that the court should adopt the PSR’s recommendation for a six-level enhancement—

he made his comment about imposing a sentence based on the “significant” number

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of aliens involved and “the way that presentence report reads” after the court had

already adopted the PSR’s unobjected-to findings and recommended guidelines

range. Mot. to Enforce, Exh. 3 at 5. Thus, his comments were not an attempt to

avoid the government’s stipulation.

Second, even if the prosecutor’s comments somehow breached the plea

agreement, Ms. Sierra cannot show that the error affected her substantial rights. By

signing the plea agreement, she acknowledged not only that the parties’ stipulations

were not binding on the court but also that, regardless of the stipulations, the court

could rely on the facts in the PSR in determining the appropriate guidelines range.

Ms. Sierra maintains that the government’s supposed breach of the plea agreement

affected her substantial rights because “she was denied the benefit of her plea

bargain, namely, the Government arguing for a sentence based on” the parties’

stipulation to a three-level enhancement. Resp. at 4. “Had the Government lived up

to the plea agreement,” she argues, the court would have adopted “a sentencing range

with a minimum of 4 months, instead of . . . 10 months,” id., and it would have

sentenced her to 4 months instead of 10, id. at 5. But there is simply nothing in the

record to support her speculation that had the government pushed for a three-level

enhancement, the court would have ignored the information in the PSR that

supported a six-level enhancement—information based on her admission to law

enforcement officers—and imposed a shorter sentence.

Having rejected Ms. Sierra’s contention that her appeal waiver is

unenforceable based on the government’s alleged breach of the plea agreement, we

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must rule on the government’s motion to enforce. In doing so, we consider whether

the appeal falls within the scope of the waiver, whether the waiver was knowing and

voluntary, and whether enforcing it would result in a miscarriage of justice. See

Hahn, 359 F.3d at 1325. Based on our review of the written plea agreement and

transcript of the change of plea hearing, we conclude that the Hahn factors have been

met, and Ms. Sierra does not contend otherwise. 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