United States v. Barragan-Rodriguez ( 2018 )


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  •                                                                                  FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                         Tenth Circuit
    FOR THE TENTH CIRCUIT                          October 31, 2018
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                          No. 18-3198
    (D.C. No. 5:17-CR-40043-DDC-1)
    ADOLFO BARRAGAN-RODRIGUEZ,                                   (D. Kan.)
    Defendant - Appellant.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before BRISCOE, O’BRIEN, and McHUGH, Circuit Judges.
    _________________________________
    This matter is before the court on the government’s motion to enforce the
    appeal waiver contained in Adolfo Barragan-Rodriguez’s plea agreement. We grant
    the government motion to enforce the plea agreement and dismiss the appeal.
    Barragan-Rodriguez pleaded guilty pursuant to a plea agreement to “a
    violation of 
    21 U.S.C. § 841
    (a)(1), namely possession with the intent to distribute
    and distribution of methamphetamine.” Mot. to Enforce, Ex. C (Plea Agmt.) at 1.
    The statutory maximum penalty for this offense is not less than 120 months’
    imprisonment and not more than life imprisonment. See 
    21 U.S.C. § 841
    (b)(1)(A).
    *
    This order and judgment is not binding precedent, except under the doctrines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.
    In the plea agreement, the parties agreed to a proposed sentence under Fed. R. Crim.
    P. 11(c)(1)(C), in “[a] range of 120-192 months in prison, with each party given an
    opportunity to argue for a controlling term of imprisonment within the proposed
    range.” Plea Agmt. at 3. The district court sentenced Barragan-Rodriguez to 180
    months’ imprisonment, five years of supervised release, and imposed a $100 special
    assessment.
    The plea agreement included the following waiver of Barragan-Rodriguez’s
    appellate rights:
    The defendant knowingly and voluntarily waives any right to appeal or
    collaterally attack any matter in connection with this prosecution, his
    conviction, or the components of the sentence to be imposed herein. . . .
    The defendant is aware that 
    18 U.S.C. § 3742
     affords him 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 in accordance with the sentence recommended by the parties under
    Rule 11(c)(1)(C).
    
    Id. at 6-7
    .
    Despite the appeal waiver, Barragan-Rodriguez has filed a notice of appeal in
    which he seeks to challenge the sentence as an abuse of discretion. 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, 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
    .
    2
    Barragan-Rodriguez concedes that the first two Hahn factors are present—his
    proposed appeal falls within the scope of the waiver and he knowingly and
    voluntarily waived his appellate rights. His argument is that the “sentence of 180
    months imprisonment constitutes a miscarriage of justice based on his age, poor
    health, and immigration status. It is also disproportionate to the sentences handed
    down to other persons who were convicted in this case.” Resp. at 2. According to
    Barragan-Rodriguez, “[a] downward variance below the guideline sentence, but
    within the range agreed upon by the parties, was appropriate in this case.” Id. at 2-3.
    Barragan-Rodriguez has the burden to demonstrate that enforcement of his
    appeal waiver would result in a miscarriage of justice. See United States v.
    Anderson, 
    374 F.3d 955
    , 959 (10th Cir. 2004). We will find that enforcement of an
    appeal waiver results in a miscarriage of justice only “[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.” Hahn, 
    359 F.3d at 1327
     (internal quotation marks omitted).
    “This list is exclusive: 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.” United States v. Polly, 
    630 F.3d 991
    , 1001 (10th Cir. 2011)
    (internal quotation marks omitted).
    But Barragan-Rodriguez does not invoke any of the miscarriage-of-justice
    factors. As such, there is no miscarriage of justice. See 
    id. at 1002
    . Further, his
    3
    argument that the appropriate sentence should have below the guidelines, but within
    the agreed-upon range, makes no sense. As the district court explained, the plea
    agreement allowed any sentence in the range between 120 and 192 months, and the
    undisputed guideline period was 188 to 235 months. The sentence Barragan-
    Rodriguez says is “appropriate” is the sentence he received because 180 months’
    imprisonment is below the guidelines and within the agreed-upon range.
    We agree with the government that Barragan-Rodriguez’s appeal falls within
    the scope of his appeal waiver, his waiver was knowing and voluntary, and
    enforcement of the waiver will not result in a miscarriage of justice. Accordingly, we
    grant the government’s motion to dismiss this appeal.
    Entered for the Court
    Per Curiam
    4
    

Document Info

Docket Number: 18-3198

Filed Date: 10/31/2018

Precedential Status: Non-Precedential

Modified Date: 10/31/2018