United States v. Rodriguez-Ruiz ( 2023 )

Appellate Case: 22-2129 Document: 010110820504 Date Filed: 03/02/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 2, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-2129
(D.C. No. 2:22-CR-00242-KG-1)
DIMAS RODRIGUEZ-RUIZ, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Dimas Rodriguez-Ruiz 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). Through counsel,
Rodriguez-Ruiz responds that the appeal waiver is unenforceable for lack of
consideration. For the reasons explained below, we grant the government’s motion.
I. BACKGROUND & PROCEDURAL HISTORY
In February 2022, a grand jury in the District of New Mexico indicted
Rodriguez-Ruiz for the crime of illegal reentry into the United States. He chose to
*
This order and judgment is not binding precedent, except under the doctrines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: 22-2129 Document: 010110820504 Date Filed: 03/02/2023 Page: 2
accept a plea deal offered by the government. Specifically, he agreed to plead guilty
to the illegal-reentry charge (the only charge alleged in the indictment), and to waive
his right to appeal the conviction or sentence. He also agreed not to seek a
downward departure or variance, or otherwise seek a sentence below the guidelines
range.
The government, for its part, stipulated that Rodriguez-Ruiz met the
requirements for a two-level acceptance-of-responsibility reduction under U.S.S.G.
§ 3E1.1(a). The government also agreed to move for an additional one-level
reduction under § 3E1.1(b), if applicable. Finally, the government agreed not to
bring other criminal charges against Rodriguez-Ruiz arising out of the facts
underlying the indictment.
Following a hearing, the district court accepted Rodriguez-Ruiz’s plea. The
parties then prepared for sentencing, and the presentence report included a two-level
reduction under § 3E1.1(a) and a one-level reduction under § 3E1.1(b). Combined
with his criminal history, his guidelines range came out to 37–46 months. The
district court ultimately accepted the presentence report without change and
sentenced Rodriguez-Ruiz to 37 months’ imprisonment.
Rodriguez-Ruiz timely filed a notice of appeal, leading to the current
proceeding.
II. ANALYSIS
The government’s motion to enforce would normally require us to ask three
questions: “(1) whether the disputed appeal falls within the scope of the waiver of
2
Appellate Case: 22-2129 Document: 010110820504 Date Filed: 03/02/2023 Page: 3
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. 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 Rodriguez-Ruiz does not raise any challenge under these
factors. He instead argues that his appeal waiver is unenforceable due to lack of
consideration. Cf. Hahn, 359 F.3d at 1324–25 (“[C]ontract principles govern plea
agreements.”). He claims he could have received the § 3E1.1(a) and (b) reductions
without a plea agreement, and there is no evidence of other charges the government
could have brought. Therefore, in Rodriguez-Ruiz’s view, he could have pleaded
blindly and ended up in the same place without waiving his right to appeal, and the
government gave nothing in exchange for that waiver—so the waiver fails and must
be severed.
“Whether a defendant’s appeal waiver set forth in a plea agreement
is enforceable is a question of law we review de novo.” United States v.
Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir. 2008). When a defendant argues
lack of consideration for an appeal waiver, we look at the whole plea agreement
because the “appeal waiver [may be] supported by the overall consideration given for
the plea.” United States v. Miles, 902 F.3d 1159, 1161 (10th Cir. 2018) (internal
quotation marks omitted).
The government tells us, however, that we should look at this question solely
from a plain-error perspective, given that Rodriguez-Ruiz did not raise any
3
Appellate Case: 22-2129 Document: 010110820504 Date Filed: 03/02/2023 Page: 4
consideration challenge in the district court. The government relies on United States
v. Rollings, 751 F.3d 1183, 1191 (10th Cir. 2014), where we held, “If defense counsel
did not object to the validity of the plea, we review solely for plain error.” In
Rollings, we were specifically addressing an argument that the entire plea was not
knowing or voluntary, and therefore the appeal waiver within the plea agreement was
likewise involuntary. See id. at 1187–91. Here, Rodriguez-Ruiz attacks the appeal
waiver, not his plea agreement overall, nor the resulting guilty plea. We will
therefore apply our typical standard of review. 1
We have previously held that overall consideration such as that given here was
enough to support an appeal waiver. See United States v. Hernandez, 134 F.3d 1435,
1437–38 (10th Cir. 1998) (noting that the government agreed to a “three level
reduction in [the defendant’s] base offense level” and “agreed not to prosecute [the
defendant] for additional charges arising out of conduct then known to the United
States”); cf. United States v. Rodriguez-Rivera, 518 F.3d 1208, 1216 (10th Cir. 2008)
(rejecting an argument that defense counsel had been ineffective because counsel had
allegedly negotiated a plea agreement with no benefit to the defendant; among other
1
His argument seemingly implies the invalidity of the entire plea agreement—
and, by extension, the resulting plea—because he is attacking the consideration for
the plea agreement generally. But the government does not argue that he cannot have
it both ways, i.e., he cannot invalidate the appeal waiver without invalidating the rest
of the plea agreement. We will therefore take his argument at face value. See
Rollings, 751 F.3d at 1190 n.5 (“Where only the appellate waiver provision is
challenged, as in most cases, we are not obligated to consider whether the plea in the
plea agreement is valid.”).
4
Appellate Case: 22-2129 Document: 010110820504 Date Filed: 03/02/2023 Page: 5
things, the government had “agreed to recommend a reduction for acceptance of
responsibility”).
Rodriguez-Ruiz counters with a Second Circuit case holding that the
government’s agreement regarding the acceptance-of-responsibility adjustments
could not be consideration for an appeal waiver because that three-level adjustment
“was available to [the defendant] even in the absence of an agreement to waive his
right to appeal.” United States v. Lutchman, 910 F.3d 33, 37 (2d Cir. 2018). In
support, the Second Circuit relied on guidelines commentary stating, “The
government should not withhold [a § 3E1.1(b) motion] based on . . . whether the
defendant agrees to waive his or her right to appeal.” Id. at 37–38 (quoting U.S.S.G.
§ 3E1.1 cmt. n.6) (internal quotation marks omitted; alterations in original). The
Second Circuit appears to be saying that
• the district court could grant a two-level adjustment (§ 3E1.1(a))
without government support (which is correct); and,
• although the additional one-level adjustment (§ 3E1.1(b)) requires a
government motion, the guidelines commentary forbids the government
from conditioning that motion on an appeal waiver.
Accordingly, government agreements regarding acceptance of responsibility cannot
support an appeal waiver.
We need not address whether the Second Circuit correctly discerned the effect
of the guidelines commentary. We point out, first, that the Second Circuit seems to
have been searching for consideration specific to the appeal waiver, which is contrary
5
Appellate Case: 22-2129 Document: 010110820504 Date Filed: 03/02/2023 Page: 6
to this circuit’s focus on consideration for the plea agreement generally, see Miles,
902 F.3d at 1161. We also note that the Second Circuit did not discuss the value of
the government’s agreement to support a two-level adjustment under § 3E1.1(a). It is
the defendant’s burden to prove entitlement to that adjustment. See United States v.
Melot, 732 F.3d 1234, 1244 (10th Cir. 2013). Rodriguez-Ruiz gives us no reason
why we should conclude that the government offers nothing of value when it agrees
to support the defendant in carrying that burden.
Rodriguez-Ruiz points to the same Second Circuit decision for the notion that
an agreement not to bring other charges is insufficient where “[the defendant]
pleaded guilty to the only count charged in the information, and the government has
not articulated or identified any additional counts that could have been proven at
trial.” Lutchman, 910 F.3d at 38. We agree with the government, however, that “the
record does not indicate whether the government could have done so [in this case]
because Rodriguez-Ruiz did not raise this argument in the district court. The
government therefore never had the chance to address whether it could have brought
additional charges arising from the same facts.” Reply at 5. Moreover, “parties
cannot build a new record on appeal.” N.M. Dep’t of Game & Fish v. United States
Dep’t of the Interior, 854 F.3d 1236, 1240 n.1 (10th Cir. 2017). Thus, it would be
inconsistent with due process for this court to fault the government for failing to
present evidence on an issue it never knew would be contested. Cf. Orner v. Shalala,
30 F.3d 1307, 1310 (10th Cir. 1994) (holding that due process required relief from
6
Appellate Case: 22-2129 Document: 010110820504 Date Filed: 03/02/2023 Page: 7
judgment when the burdened party “was not given any notice” of the relevant
proceeding and “had no reason whatsoever to anticipate [it]”).
III. CONCLUSION
For all these reasons, we reject Rodriguez-Ruiz’s lack-of-consideration
argument, grant the government’s motion to enforce the appeal waiver, and dismiss
this appeal.
Entered for the Court
Per Curiam
7