United States v. Lopez-Aguilar , 912 F.3d 1327 ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 15, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2121
MARVIN LOPEZ-AGUILAR,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. Nos. 1:16-CV-00668-WJ-CG and 1:09-CR-02962-WJ-1)
_________________________________
Submitted on the briefs * :
James D. Tierney, Acting United States Attorney, and C. Paige Messec,
Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-
Appellee.
Benjamin A. Gonzales, Assistant Federal Public Defender, Albuquerque,
New Mexico, for Defendant-Appellant.
_________________________________
Before BACHARACH, BALDOCK, and EBEL, Circuit Judges.
__________________________________
*
Oral argument would not materially aid our consideration of the
appeal, so we have decided the appeal based on the briefs. See Order
(Nov. 2, 2018).
BACHARACH, Circuit Judge.
_________________________________
This appeal grew out of a plea agreement in which the defendant
waived his right to collaterally challenge his conviction. Despite the
waiver, the defendant collaterally challenged the conviction under 28
U.S.C. § 2255. The district court dismissed the challenge without ruling on
the waiver, holding instead that the defendant’s underlying claim failed on
the merits. On appeal, the government defends this ruling, adding that we
should also affirm based on the defendant’s waiver of a collateral
challenge.
The defendant doesn’t question the enforceability or applicability of
the waiver. Instead, he contends that the government forfeited the waiver
by failing to invoke it in district court. We reject this contention because
the government never had an opportunity to assert the waiver in district
court. As a result, we affirm based on the waiver. 1
1. The defendant waived his right to collaterally challenge the
conviction.
The defendant pleaded guilty based on an agreement with the
government. The agreement included a waiver of the right to collaterally
challenge the conviction:
1
Given the applicability of the waiver, we need not address the merits
of the defendant’s claim.
2
The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742 afford a Defendant the right to appeal a conviction and
the sentence imposed. Acknowledging that, the Defendant
knowingly waives the right to appeal the Defendant’s
conviction(s) and any sentence, including any order of
restitution, within the statutory maximum authorized by law and
imposed in conformity with this plea agreement. In addition, the
Defendant agrees to waive any collateral attack to the
Defendant’s conviction(s) pursuant to 28 U.S.C. § 2255, except
on the issue of counsel’s ineffective assistance in negotiating or
entering this plea or this waiver.
R., vol. II at 33 (emphasis added).
Despite this waiver, the defendant collaterally challenged the
conviction by filing a motion under § 2255. The district court summarily
dismissed the motion on the merits without directing the government to
respond. The defendant appeals, and the government argues that we should
enforce the waiver of a collateral challenge.
To enforce a waiver of a collateral challenge, we consider three
elements: “(1) whether the issue appealed or challenged falls within the
scope of the text of the waiver; (2) whether the waiver was knowingly and
voluntarily entered into; and (3) whether enforcing the waiver would result
in a miscarriage of justice.” United States v. Pinson, 584 F.3d 972, 975
(10th Cir. 2009) (citing United States v. Hahn, 359 F.3d 1315, 1325 (10th
Cir. 2004) (en banc)). The government asserts that each element is met, and
the defendant does not argue to the contrary. Given the absence of a
challenge to the presence of the three elements, we conclude that the
defendant waived his right to collaterally challenge the conviction.
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2. The government timely invoked the waiver.
Though the defendant does not challenge the enforceability or
applicability of the waiver, he argues that
 the government forfeits invocation of the waiver by failing to
assert it in the first instance and
 the government should have invoked the waiver in district
court.
The defendant thus contends that the government forfeited its opportunity
to invoke the waiver. We disagree.
We have recognized that
 waivers benefit the government by “saving the costs” of
prosecuting further litigation and
 such litigation should be efficiently and summarily dismissed
for “the government [to] receive the benefit of its bargain.”
United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). But
we have also recognized that the government can forfeit waivers by failing
to enforce them. See United States v. Calderon, 428 F.3d 928, 930–31 (10th
Cir. 2005) (declining to enforce an appellate waiver after the government
declined the court’s invitation to respond); see also United States v.
Parker, 720 F.3d 781, 786 (10th Cir. 2013) (recognizing the government’s
obligation to invoke waivers). We can assume, for the sake of argument,
that the government forfeits invocation of the waiver by failing to assert it
in district court when given an opportunity to do so. But the government
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never had an opportunity to assert the waiver when the case was in district
court.
In the § 2255 proceedings, the district court had two options: It could
summarily dismiss the defendant’s motion or order a response. See Rule
4(b), Rules Governing Section 2255 Proceedings in the U.S. District
Courts. Until the court ordered a response, the government didn’t need to
file one. See Rule 5(a), Rules Governing Section 2255 Proceedings in the
U.S. District Courts (“The respondent is not required to answer the
[§ 2255] motion unless a judge so orders.”). Thus, if the district court did
not order the government to respond to the § 2255 motion, the government
could raise the waiver for the first time in the appeal. See Remington v.
United States, 872 F.3d 72, 77 (1st Cir. 2017) (“Under Rule 5(a) . . . the
government did not lose its right to object to Remington’s § 2255 motion
for the simple reason that the District Court never ordered the government
to answer Remington’s motion.”); cf. Wiggins v. New Mexico State Supreme
Court Clerk, 664 F.2d 812, 817 (10th Cir. 1981) (holding that when a
complaint is dismissed sua sponte before the government responds, the
government doesn’t waive the right to later assert affirmative defenses).
Here the district court summarily dismissed the motion rather than
order a response. Given the summary dismissal, the government had no
opportunity to invoke the waiver in district court. So the government can
invoke the waiver here.
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* * *
The government timely asserted the waiver, and the defendant does
not question its enforceability or applicability. We therefore affirm the
district court’s summary dismissal of the defendant’s § 2255 motion.
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