United States v. Olivas-Lasos , 594 F. App'x 558 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 27, 2015
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 14-1372
v. (D.C. No. 1:13-CR-00497-PAB-1)
(D. Colo.)
ESTEBAN OLIVAS-LASOS,
a/k/a Estefan Olivas-Lasos,
a/k/a Isidro Carillo-Frausto,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
Esteban Olivas-Lasos entered into a plea agreement that included an appeal
waiver. He pleaded guilty to illegal re-entry of a previously deported alien following
an aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and (b)(2) and was
sentenced to thirty months in prison. Despite his appeal waiver, he filed a notice of
appeal. The government has moved to enforce the waiver under United States v.
*
This panel has determined that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). We grant the
motion and dismiss the appeal.
In considering a motion to enforce an appeal waiver, Hahn directs us to
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.” Id. at 1325. A miscarriage of justice occurs if (1) “the district court
relied on an impermissible factor such as race”; (2) there was “ineffective assistance
of counsel in connection with the negotiation of the waiver,” making it invalid;
(3) “the sentence exceeds the statutory maximum”; or (4) “the waiver is otherwise
unlawful.” Id. at 1327 (internal quotation marks omitted); see also United States v.
Polly, 630 F.3d 991, 1001 (10th Cir. 2011) (“This list is exclusive: enforcement of
an appellate waiver does not result in a miscarriage of justice unless enforcement
would result in one of the four situations enumerated above.” (internal quotation
marks omitted)).
Mr. Olivas-Lasos does not deny that this appeal is within the scope of the
appeal waiver or that he entered into the waiver knowingly and voluntarily. He,
instead, argues that the waiver will result in a miscarriage of justice because his
sentence is substantively unreasonable due to the use of a twenty-two-year-old prior
conviction to triple his offense level and to assign him three criminal history points.
Although he does not enumerate which of the four miscarriage-of-justice bases
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applies, we assume that he is claiming that the appeal waiver is otherwise unlawful.
“To be otherwise unlawful, an error must seriously affect the fairness, integrity or
public reputation of judicial proceedings.” United States v. Smith, 500 F.3d 1206,
1212 (10th Cir. 2007) (brackets omitted) (internal quotation marks omitted).
Mr. Olivas-Lasos’s substantive-unreasonableness-of-his-sentence argument
does not fit within the otherwise-unlawful category of a miscarriage of justice. That
category allows us to consider only whether the waiver is otherwise unlawful, not
whether there may be legal error with the sentence. See id. at 1212-13.
Mr. Olivas-Lasos also argues that this court “has the inherent authority [to]
resolve an appeal on its merits, despite an appeal waiver.” Resp. at 7-8. To support
his argument, he cites to United States v. Black, 773 F.3d 1113, 1115 n.2 (10th Cir.
2014), which declined to engage in an appeal-waiver analysis and instead resolved
the appeal on its merits. We, however, recently distinguished Black and declined to
apply it in an appeal-waiver case. See United States v. Garcia-Ramirez, ___ F.3d
___, 2015 WL 676802, at *1 (10th Cir. Feb. 18, 2015) (per curiam). In doing so, we
determined that
[i]t was appropriate to bypass resolution of the waiver issue in Black
because (1) the waiver issue was relatively complex, (2) the government
had briefed the merits, and (3) Black’s appellate argument clearly
failed. Because this court was able to determine there was no merit to
Black’s substantive claim, the appeal could be affirmed without
devoting judicial resources to decide the waiver issue. In short, Black
merely addressed a matter of judicial economy in deciding cases, it
signaled no change in our appeal waiver jurisprudence.
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Id. (footnote omitted). Like the Garcia-Ramirez appeal, Mr. Olivas-Lasos’s appeal
presents no compelling matter of judicial economy warranting a by-pass of the Hahn
appeal-waiver analysis. The waiver issue, as noted above, is not complex, and the
government has not briefed the merits of a substantive-reasonableness argument.
Under the circumstances of this case, we will not exercise our discretion to decide the
merits of Mr. Olivas-Lasos’s substantive-reasonableness argument.
Accordingly, the motion to enforce is granted, and this appeal is dismissed.
Entered for the Court
Per Curiam
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