United States v. Betancourt ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 12, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-6038
(D.C. No. 5:17-CR-00295-F-5)
LOZARO LEON BETANCOURT, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in Lozaro Leon Betancourt’s plea agreement. Exercising jurisdiction
under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal.
BACKGROUND
Betancourt pleaded guilty to conspiracy to commit access device fraud in
violation of 18 U.S.C. § 1029(b)(2). The written plea agreement provided a detailed
advisement about the possible sentences. As pertinent here, it explained that the
maximum statutory sentence was five years and that Betancourt had agreed that for
*
This order and judgment is not binding precedent, except under the doctrines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.
purposes of calculating the applicable guidelines range, the total of actual and
intended losses was between $250,000 and $550,000. The plea agreement also
explained that Betancourt had agreed to waive his “right to appeal his sentence,”
including “the manner in which the sentence is determined,” and provided that the
only exception to the appeal waiver was that he retained his right to appeal the
substantive reasonableness of an above-guidelines sentence. Mot. to Enforce,
Attach. 1 at 8. By signing the written plea agreement, Betancourt acknowledged that
he was entering his plea knowingly and voluntarily and that he understood its
consequences, including the stipulated loss range, possible sentences, and appeal
waiver.
At the change of plea hearing, Betancourt assured the court that he had read
and discussed the plea agreement with counsel before signing it and that he
understood its terms. The court reminded him of the possible sentences and the
court’s discretion to determine both the applicable guidelines range and the ultimate
sentence imposed. The court also reminded Betancourt about the broad scope of the
appeal waiver and confirmed that he understood that he was waiving his right to
appeal “even though [he did] not yet know what [his] sentence . . . will be.” Id.,
Attach. 2 at 11. At every step of the advisement, Betancourt indicated that he
understood, and he did not ask questions or seek clarification when given the
opportunity to do so. Based on Betancourt’s responses to the court’s questions and
its observations of his demeanor during the change of plea hearing, the court
accepted his plea as having been voluntarily, knowingly, and intelligently entered.
2
At the subsequent sentencing hearing, the court and counsel had an extensive
colloquy about Betancourt’s objections to the loss amount. Specifically, he argued
that his sentence should be based on the actual loss amount, which represented the
loss to financial institutions and individuals whose credit cards were compromised,
instead of on the intended loss amount, which included the value of numerous
counterfeit credit cards, gifts cards, and other instruments he possessed in furtherance
of the fraud scheme. He maintained that the court should give little weight to the
intended loss amount both because it was overstated and because it included the
value of gift cards despite the lack of circuit precedent holding that gift cards are
access devices for purposes of the access device fraud statute. But the court
ultimately overruled those objections, noting that the parties had stipulated to a total
loss amount of $259,870.03. Based in part on that loss amount, the court adopted a
guidelines range of 30 to 37 months and, after considering the parties’ arguments for
upward and downward variations, sentenced Betancourt to 37 months in prison—the
maximum sentence in the applicable guidelines range.
Despite the fact that his sentence does not fall within the only exception that
would permit an appeal (an above-guidelines sentence), Betancourt filed an appeal
claiming the sentence is substantively unreasonable and excessive in light of his lack
of criminal history and the court’s use of “an artificially inflated” intended loss
amount. Aplt. Docketing Statement at 4.
3
DISCUSSION
In ruling on a motion to enforce, we 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.” United States v. Hahn, 359 F.3d
1315, 1325 (10th Cir. 2004) (en banc) (per curiam). Betancourt concedes that he
knowingly and voluntarily waived his right to appeal and that his appeal falls within
the scope of the waiver. He maintains, however, that enforcing the appeal waiver
would result in a miscarriage of justice. We disagree.
A miscarriage of justice occurs where (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.”
Hahn, 359 F.3d at 1327 (internal quotation marks and citations omitted). To show
that an appeal waiver is “otherwise unlawful,” the defendant must prove that the
alleged error “seriously affect[ed] the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 1329. “The burden rests with the defendant to
demonstrate that the appeal waiver results in a miscarriage of justice.” United States
v. Anderson, 374 F.3d 955, 959 (10th Cir. 2004).
Here, Betancourt claims his appeal waiver is “otherwise unlawful” and that
“[j]ustice and notions of fundamental fairness” require that he be permitted to appeal
the substantive reasonableness of his sentence because the court’s use of the intended
4
loss amount resulted in an excessive sentence that does not fulfill the purposes of
punishment set forth in 18 U.S.C. § 3553(a). Resp. to Mot. to Enforce at 6. But his
argument challenges the propriety of the sentence, not the legality of his appeal
waiver. Because the “otherwise unlawful” exception is focused on the fairness of the
proceedings, not the result of the proceedings, a defendant may not rely on it to avoid
enforcement of an appeal waiver based on alleged errors in the calculation of his
sentence. United States v. Smith, 500 F.3d 1206, 1212-13 (10th Cir. 2007).
CONCLUSION
Accordingly, we grant the government’s motion to enforce the appeal waiver
and dismiss the appeal.
Entered for the Court
Per Curiam
5