United States v. Orozco ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 6, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 08-3085
v. (D. Kansas)
ALEX OROZCO, (D.C. No. 03-CR-40126-SAC)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
After examining the briefs and the appellate record, this court has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
Accordingly, the case is ordered submitted without oral argument.
Proceeding pro se, Alex Orozco appeals the district court’s dismissal of the
Motion to Modify Sentence he brought pursuant to 18 U.S.C. § 3582(c)(2). On
May 18, 2005, Orozco pleaded guilty to one count of distributing
*
This order and judgment is not binding precedent except under the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.
methamphetamine, in violation of 18 U.S.C. § 841(a)(1). United States v.
Orozco, 219 F. App’x 777, 777 (10th Cir. 2007). The Government’s motion to
enforce an appeal waiver contained in Orozco’s plea agreement was granted by
this court and his direct appeal was dismissed. Id. at 778.
Orozco then filed the § 3582(c)(2) motion that is the subject of this appeal.
In his motion, Orozco argued his sentence should be modified based on changes
made to § 4A1.2 of the United States Sentencing Guidelines. See United States v.
Torres-Aquino, 334 F.3d 939, 940 (10th Cir. 2003) (“Under 18 U.S.C.
§ 3582(c)(2), a court may reduce a previously imposed sentence if the Sentencing
Commission has lowered the applicable sentencing range and ‘such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.’”). The Government sought dismissal of Orozco’s motion, basing
its argument on the following waiver provision in the plea agreement:
Defendant knowingly and voluntarily waives any right to appeal or
collaterally attack any matter in connection with this prosecution,
conviction and sentence. The defendant is aware that Title 18,
U.S.C. § 3742 affords a defendant the right to appeal the conviction
and sentence imposed. By entering into this agreement, the
defendant knowingly waives any right to appeal a sentence imposed
which is within the guideline range determined appropriate by the
court. The defendant also waives any right to challenge a sentence
or otherwise attempt to modify or change his sentence or manner in
which it was determined in any collateral attack, including, but not
limited to, . . . a motion brought under Title 18 U.S.C. § 3582(c)(2).
The district court granted the Government’s motion and dismissed Orozco’s
§ 3582(c)(2) motion. The court concluded the issues Orozco sought to raise fell
-2-
within the scope of the waiver in his plea agreement which he entered into
knowingly and voluntarily. See United States v. Hahn, 359 F.3d 1315, 1327 (10th
Cir. 2004) (en banc). In the alternative, the district court concluded Orozco’s
claims failed on the merits.
Orozco filed the instant appeal, challenging the district court’s dismissal of
his § 3582(c)(2) motion. We have reviewed the record, the appellate briefs, and
the applicable law and conclude the dismissal of Orozco’s § 3582(c)(2) motion
was clearly correct. Accordingly, the district court’s order dismissing Orozco’s
motion is affirmed for substantially the reasons stated in the district court’s order
dated February 21, 2008.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-3-