United States v. Tapia ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 24, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-2124
(D.C. No. 1:12-CR-03012-JMC-1)
MARC TAPIA, a/k/a Mark Anthony (D. N.M.)
Russel, a/k/a Mark Lovato, a/k/a Anthony
Tapia,
Defendant - Appellant.
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ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, MATHESON, and MORITZ, Circuit Judges.
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Marc Tapia pleaded guilty to one count of being a felon in possession of a
firearm and ammunition. He was sentenced to 26 months in prison, which was below
the Sentencing Guidelines range of 30 to 37 months.1 Although his plea agreement
contained an appeal waiver, he appealed. The government has moved to enforce the
appeal waiver under United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004)
(en banc) (per curiam). We grant the motion and dismiss this appeal.
*
This order and judgment is not binding precedent, except under the doctrines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.
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Because of a long delay between the time Mr. Tapia pleaded guilty and when
he was sentenced, he is scheduled to be released from prison on February 11, 2019.
Under Hahn, 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. We need not address the first two
conditions because Mr. Tapia does not challenge them. See United States v. Porter,
405 F.3d 1136, 1143 (10th Cir. 2005). His sole argument is that enforcing the waiver
would result in a miscarriage of justice.
In Hahn, we explained that a miscarriage of justice occurs “[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.” 359 F.3d at 1327 (internal quotation marks
omitted). We further explained that “enforcement of an appellate waiver does not
result in a miscarriage of justice unless enforcement would result in one of the four
situations enumerated” above. Id.
Mr. Tapia contends he was denied his right to allocute at his sentencing
hearing. He asserts that “[t]he Court should pierce through an appellate waiver under
the ‘otherwise unlawful’ prong of Hahn where the defendant/appellant seeks to assert
an error on appeal that seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Resp. to Mot. to Enf. at 4-5 (internal quotation marks
omitted). But the problem with Mr. Tapia’s argument is that the “otherwise
unlawful” exception “looks to whether the waiver is otherwise unlawful, not to
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whether another aspect of the proceeding may have involved legal error.” United
States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007) (citation and internal quotation
marks omitted); see also United States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir.
2007) (“An appeal waiver is not ‘unlawful’ merely because the claimed error would,
in the absence of the waiver, be appealable. To so hold would make a waiver an
empty gesture.”).
In support of his argument, Mr. Tapia spends most of his brief discussing the
importance of the right of allocution. But he fails to show that any aspect of his
appeal waiver was unlawful. We agree with Mr. Tapia that the right to allocute is an
important part of the sentencing process, but “[i]t has long been established that a
criminal defendant may waive many fundamental procedural and substantive rights,
both constitutional and statutory.” United States v. Mitchell, 633 F.3d 997, 1001
(10th Cir. 2011). Even assuming there was plain error involving the denial of
Mr. Tapia’s right to allocute, we have held the “otherwise unlawful” exception to be
inapplicable to errors that are distinct from the waiver itself. See United States v.
Polly, 630 F.3d 991, 1001-02 (10th Cir. 2011); United States v. Shockey,
538 F.3d 1355, 1357-58 (10th Cir. 2008); Smith, 500 F.3d at 1212-13.
Because Mr. Tapia has not argued that his appeal waiver was otherwise
unlawful, he has failed to show that enforcing the waiver would result in a
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miscarriage of justice. Accordingly, we grant the motion to enforce and dismiss this
appeal. We deny as moot Mr. Tapia’s request to expedite his appeal.
Entered for the Court
Per Curiam
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