United States v. Velasquez-Lopez ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 3, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 13-5033
(D.C. No. 4:12-CR-00030-JHP-2)
DOVEREYNE VELASQUEZ-LOPEZ, (N.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, HARTZ and GORSUCH, Circuit Judges.
This matter is before the court on the government’s motion to enforce the
appeal waiver contained in defendant Dovereyne Velasquez-Lopez’s plea agreement.
The defendant pleaded guilty to one count of conspiracy to engage in sex trafficking
by force, fraud, or coercion, in violation of 18 U.S.C. § 1594(c). See Attach. to Mot.
to Enforce, Plea Agmt. at 1. The district court sentenced him to 87 months’
*
This panel has determined 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). 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
imprisonment. The defendant’s sentence was at the top of the applicable advisory
guidelines range calculated after the court granted the government’s motion for a
four-level downward departure. See id., Sentencing Tr. at 20, 26.
Pursuant to his plea agreement, “the defendant knowingly and voluntarily . . .
waive[d] the right to directly appeal [his] conviction and sentence,” but “reserve[d]
the right to appeal from a sentence which exceeds the statutory maximum.” Id., Plea
Agmt. at 3. “The defendant expressly acknowledge[d] that counsel has explained his
appellate . . . rights; that [he] understands his rights; and that [he] knowingly and
voluntarily waive[d] those rights . . . .” Id. at 4.
The government filed a motion to enforce the plea agreement under
United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). In
evaluating a motion to enforce a waiver, 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.” Id. at 1325.
In his response to the government’s motion, the defendant does not argue that
the Hahn factors are not satisfied in this case. Instead, he contends that “circuit
courts should not enforce sentencing appeal waivers, particularly those as open-ended
with respect to a possible sentence as is [the defendant’s] waiver.” Resp. to Mot. to
Enforce at 3. The defendant acknowledges that this court held in Hahn that
sentencing appeal waivers are enforceable if they satisfy the requirements set forth in
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that decision. See 359 F.3d at 1324-28. He indicates that he raises this argument
only to preserve the issue for possible review by the Supreme Court. See United
States v. Prince, 647 F.3d 1257, 1271-72 (10th Cir. 2011) (affirming sentence where
existing precedent addressed issue, which was raised by defendant only to preserve it
for Supreme Court review).
More specifically, the defendant contends that he could not knowingly and
voluntarily waive appeal of sentencing errors that have not yet occurred. We rejected
that contention in Hahn. See 359 F.3d at 1326-27 (“[W]e reject the notion that, as a
matter of law, all presentencing waivers of appellate rights are unknowing and
involuntary.” Id. at 1327). He also argues that “sentencing appeal waivers unduly
burden the right to appeal in violation of due process.” Resp. to Mot. to Enforce at 4.
We did not expressly address in Hahn whether a defendant’s waiver of his appellate
rights in a plea agreement is an undue burden on his right to appeal. But in
concluding that appellate waivers are enforceable if the appeal falls within the scope
of the waiver; if the waiver was knowing and voluntary; and if enforcement of the
waiver would not result in a miscarriage of justice, Hahn, 359 F.3d at 1325, we
implicitly concluded that enforcement of an appellate waiver is not, as a matter of
law, a violation of due process. The defendant’s final contention is that appellate
waivers “violate public policy because Congress established the right to appeal
sentences to encourage the Sentencing Reform Act’s goals of uniformity and
fairness.” Resp. to Mot. to Enforce at 4. In Hahn, we stated that “we generally
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enforce plea agreements and their concomitant waivers of appellate rights . . . in large
part[] because public policy strongly supports such waivers as they benefit
defendants, the government, and society at large.” 359 F.3d at 1318. Indeed, in
deciding what factors to consider in determining whether an appellate waiver is
enforceable, we apply a contract analysis “tempered by public policy concerns.” Id.;
see also id. at 1325.
Moreover, to the extent that this court has not addressed the defendant’s
precise due-process and public-policy contentions, his arguments on these claims are
perfunctory and not sufficiently developed to invoke our appellate review. See
United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not
consider . . . issues adverted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation.” (quotation omitted)).
Accordingly, we grant the government’s motion to enforce the appeal waiver
and dismiss the appeal.
Entered for the Court
Per Curiam
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