United States v. Nevarez-Barela ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 16, 2017
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2092
(D.C. No. 2:17-CR-00862-KG-1)
RICHARD ANTHONY NEVAREZ- (D. N.M.)
BARELA,
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before LUCERO, EBEL, and PHILLIPS, Circuit Judges.
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After entering into a plea agreement that included a waiver of his right to
appeal, Richard Anthony Nevarez-Barela pleaded guilty to conspiracy to transport
illegal aliens, a violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). He was sentenced to a
six-month term of imprisonment followed by up to six months in a halfway house,
which was within the advisory guidelines range. Despite the waiver, he appealed.
The government has moved to enforce the appeal waiver. See United States v. Hahn,
*
This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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.
359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). We grant the motion
and dismiss the appeal.
Whether an appeal waiver is enforceable is a question of law. United States v.
Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir. 2008). Under Hahn, we evaluate a
motion to enforce a waiver by considering “(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.” 359 F.3d at 1325. “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).
Mr. Nevarez-Barela first argues that enforcing the waiver would result in a
miscarriage of justice because the district court failed to enunciate any rationale for
imposing his sentence. But enforcing an appeal waiver results in a miscarriage of
justice only in four situations: “[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.” United States v. Polly, 630 F.3d 992, 1001 (10th Cir. 2011) (alteration in
original) (internal quotation marks omitted). Mr. Nevarez-Barela does not present
any facts or argument that would show any of these four situations occurred. His
argument about the sentencing hearing does not pertain to the lawfulness of the
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waiver itself. As a result, he has not shown that enforcing the waiver will result in a
miscarriage of justice.
Mr. Nevarez-Barela next contends that the appeal waiver is unconscionable
because the government is not subject to a similar bar. But both the accused and the
government benefit from appeal waivers. “The essence of plea agreements . . . is that
they represent a bargained-for understanding between the government and criminal
defendants in which each side foregoes certain rights and assumes certain risks in
exchange for a degree of certainty as to the outcome of criminal matters.” United
States v. Porter, 405 F.3d 1136, 1145 (10th Cir. 2005). “A waiver of appellate rights
can be of great value to an accused as a means of gaining concessions from the
government,” while the government benefits “by saving . . . time and money involved
in arguing appeals.” United States v. Elliott, 264 F.3d 1171, 1174 (10th Cir. 2001)
(internal quotation marks omitted). Mr. Nevarez-Barela cites no authority for the
proposition that the lack of congruency between the benefits received by each side
from appeal waivers renders them unconscionable or undermines the strong public
policy reasons for favoring them, see id.Finally, Mr. Nevarez-Barela contends that he received ineffective assistance of
counsel in the negotiation of the appeal waiver that is not apparent on the face of the
record. “[A] defendant must generally raise claims of ineffective assistance of
counsel in a collateral proceeding, not on direct review.” Porter, 405 F.3d at 1144.
“This rule applies even where a defendant seeks to invalidate an appellate waiver
based on ineffective assistance counsel.” Id.3
The motion to enforce is granted, and this appeal is dismissed.
Entered for the Court
Per Curiam
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