United States v. Antillo-Quintero ( 2022 )

Appellate Case: 22-1042 Document: 010110683985 Date Filed: 05/13/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 13, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-1042
(D.C. No. 1:20-CR-00028-RM-14)
JESUS ANTILLO-QUINTERO, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, KELLY, and McHUGH, Circuit Judges.
_________________________________
Jesus Antillo-Quintero appeals from his sentence despite the appeal waiver in
his plea agreement. The government now moves to enforce that waiver under United
States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).
Through counsel, Antillo-Quintero responds that the appeal waiver does not
encompass the argument he intends to make on appeal and that enforcing the waiver
would be a miscarriage of justice. For the reasons explained below, we grant the
government’s 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This order and judgment is not binding precedent, except under the doctrines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: 22-1042 Document: 010110683985 Date Filed: 05/13/2022 Page: 2
I. BACKGROUND & PROCEDURAL HISTORY
In early 2020, a grand jury in the District of Colorado indicted
Antillo-Quintero and numerous others on drug-conspiracy and related charges.
Antillo-Quintero chose to plead guilty to the drug-conspiracy charge in exchange for
the government’s agreement to dismiss other charges and to recommend that he
receive credit for acceptance of responsibility. Antillo-Quintero and the government
embodied this deal in a written plea agreement containing the following appeal
waiver:
The defendant is aware that 18 U.S.C. § 3742 affords the
right to appeal the sentence, including the manner in which
that sentence is determined. Understanding this, and in
exchange for the concessions made by the Government in
this agreement, the defendant knowingly and voluntarily
waives the right to appeal any matter in connection with
this prosecution, conviction, or sentence unless it meets
one of the following criteria: (1) the sentence exceeds the
advisory guideline range that applies to a total offense
level of 29 or, if applicable, the statutory mandatory
minimum sentence; or (2) the Government appeals the
sentence imposed.
Mot. to Enforce Appeal Waiver, Attach. 1 (“Plea Agreement”) at 2.
At the change-of-plea hearing, the district court explained the concepts of
“total offense level of 29” and “statutory mandatory minimum sentence,” and
confirmed Antillo-Quintero’s understanding of the appeal waiver. The district court
further explained that the mandatory minimum sentence in question was ten years.
Finally, the court announced that, assuming the mandatory minimum applied, the
court could sentence below that only if Antillo-Quintero substantially assisted the
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government, see 18 U.S.C. § 3553(e), or if he met the requirements of the so-called
“safety valve” provision in 18 U.S.C. § 3553(f).
Based on Antillo-Quintero’s answers to the district court’s questions on these
and other topics, the district court found that Antillo-Quintero had competently,
knowingly, and voluntarily entered into the plea agreement. The court accordingly
accepted the agreement and set the matter for sentencing.
At sentencing, no party disputed that the mandatory ten-year minimum would
apply if Antillo-Quintero did not qualify for safety-valve relief. Thus, the bulk of
sentencing hearing focused on the safety-valve requirements.
Under the circumstances of the case, the first safety-valve question for the
district court was whether Antillo-Quintero possessed a firearm “in connection with
the offense.” Id. § 3553(f)(2). Law enforcement officials had executed a search
warrant for Antillo-Quintero’s home and discovered firearms. Antillo-Quintero
argued, however, that the evidence did not show a connection to his offense because
the government had surveilled him and his co-conspirators for an extended time and
the results of that surveillance (e.g., wiretap recordings) never mentioned firearms.
The district court concluded this was not enough to meet the defendant’s burden to
show a lack of connection.
Although that ruling was enough to deny safety-valve relief, the court
and the parties also debated a different safety-valve condition, namely, whether
Antillo-Quintero had fully disclosed to the government what he knew about the
offense and the others involved. See id. § 3553(f)(5). The district court announced
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its impression that, in light of what Antillo-Quintero divulged, his failure to divulge
related details suggested he had attempted to give the appearance of cooperation
without fully cooperating. Antillo-Quintero objected that the government never
asked about the additional details and he had no reason to suspect the government
wanted that information. He further requested a continuance so he could provide
whatever additional details the government might want. The district court denied
that request and found he had not carried his burden to show full cooperation.
Because the safety valve did not apply, the district court sentenced
Antillo-Quintero to the mandatory minimum of ten years’ imprisonment.
Antillo-Quintero timely appealed, prompting the government to file the motion
now at issue.
II. ANALYSIS
The government’s motion to enforce requires us to ask three questions:
“(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.”
Hahn, 359 F.3d at 1325. We address them in turn.
A. Scope of the Waiver
Antillo-Quintero intends to argue on appeal that the district court made “an
erroneous and/or unconstitutional evaluation of the ‘safety valve’ factors,” in
violation of his due process rights. Def.’s Resp. to Gov’t Mot. to Enforce Appeal
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Waiver (“Response”) at 2, 3. The government contends that this argument falls
within the appeal waiver. We agree with the government.
Again, the waiver contains two narrow exceptions: “(1) the sentence exceeds
the advisory guideline range that applies to a total offense level of 29 or, if
applicable, the statutory mandatory minimum sentence; or (2) the Government
appeals the sentence imposed.” Plea Agreement at 2. Antillo-Quintero received the
statutory mandatory minimum sentence and the government has not appealed. On its
face, then, no exception permits this appeal.
Antillo-Quintero does not argue that the words “if applicable” preserve his
proffered safety-valve challenge. He instead argues from a different section of the
plea agreement, ten pages later, which states,
The parties understand that the Court is free, upon
consideration and proper application of all 18 U.S.C.
§ 3553 factors, to impose that reasonable sentence which it
deems appropriate in the exercise of its discretion and that
such sentence may be less than that called for by the
advisory guidelines (in length or form), within the advisory
guideline range, or above the advisory guideline range up
to and including imprisonment for the statutory maximum
term, regardless of any computation or position of any
party on any 18 U.S.C. § 3553 factor.
Id. at 12–13 (emphasis added). Thus, he says, “it is clear that the appeal of an
unreasonable and unconstitutional sentence did not fall in the scope of the appeal
waiver.” Response at 2.
We recognize that appeal waivers are construed narrowly, see Hahn, 359 F.3d
at 1325, but Antillo-Quintero’s interpretation—based on language in a later section
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with no obvious relation to the appeal waiver—would empty his appeal waiver of
meaning. “[C]ontract principles govern plea agreements.” Id. at 1324–25. “[A]n
interpretation which gives a reasonable, lawful, and effective meaning to all the terms
is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no
effect[.]” Restatement (Second) of Contracts § 203(a) (1981). Here, the “reasonable
sentence” passage quoted above is best understood in context, not as qualifying the
appeal waiver, but as affirming the district court’s discretion despite what the parties
may argue, particularly regarding guidelines calculations. See also Plea Agreement
at 12 (noting that the parties’ guidelines calculations do not bind the court and that
any party’s calculation does not prevent the party from requesting a departure or
variance).
Antillo-Quintero further argues that the supposed interplay between the appeal
waiver and the “reasonable sentence” passage at least creates an ambiguity. See
Hahn, 359 F.3d at 1325 (noting that ambiguities will be construed against the
government). But courts generally define contractual ambiguity as “the possibility
that a word or phrase in a contract might reasonably and plausibly be subject to more
than one meaning.” 11 Richard A. Lord, Williston on Contracts § 32:12 (4th ed.,
May 2022 update). Standing alone, the appeal waiver does not satisfy this standard,
and we do not view the “reasonable sentence” passage ten pages later as rendering
the appeal waiver plausibly subject to an implied exception that nullifies the explicit
exceptions. Cf. Gelco Builders & Burjay Constr. Corp. v. United States, 369 F.2d
992, 999–1000 (Ct. Cl. 1966) (per curiam) (“[T]he alternative interpretation placed
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upon the alleged ambiguity by the contractor [must] be, under all the circumstances,
a reasonable and practical one.”).
For these reasons, we find that this appeal falls within Antillo-Quintero’s
appeal waiver.
B. Knowing and Voluntary Waiver
Normally, we would next ask “whether the defendant knowingly and
voluntarily waived his appellate rights.” Hahn, 359 F.3d at 1325. But we need not
address a Hahn factor that the defendant does not dispute, see United States v.
Porter, 405 F.3d 1136, 1143 (10th Cir. 2005), and Antillo-Quintero does not raise
any argument in this regard. We therefore deem him to concede that his waiver was
knowing and voluntary.
C. Miscarriage of Justice
Last, we ask “whether enforcing the waiver would result in a miscarriage of
justice.” Hahn, 359 F.3d at 1325. A miscarriage of justice occurs “[1] where the
district court relied on an impermissible factor such as race, [2] where ineffective
assistance of counsel in connection with the negotiation of the waiver renders the
waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4] where
the waiver is otherwise unlawful.” Id. at 1327 (bracketed numerals in original;
internal quotation marks omitted).
Antillo-Quintero relies on the otherwise-unlawful prong, arguing that the
district court egregiously violated his due process rights when it denied him
safety-valve relief. But the otherwise-unlawful inquiry focuses on the waiver. It is
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not a license to inquire “whether another aspect of the proceeding may have involved
legal error.” United States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007); see also
United States v. Holzer, 32 F.4th 875, 2022 WL 1207861, at *9 (10th Cir. Apr. 25,
2022) (“[T]he occurrence of constitutional errors during sentencing is [not] sufficient
to establish that the waiver itself was unlawful.”). Antillo-Quintero’s attack on the
district court’s safety-valve conclusion is an attack on the lawfulness of his sentence,
not his appeal waiver.
Absent any meritorious argument from Antillo-Quintero that his waiver was
otherwise unlawful, we find that enforcing the waiver would not result in a
miscarriage of justice.
III. CONCLUSION
This appeal falls within Antillo-Quintero’s appeal waiver, and no other Hahn
factor counsels against enforcement of the waiver. We therefore grant the
government’s motion to enforce the waiver and dismiss this appeal.
Entered for the Court
Per Curiam
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