United States v. Gamboa , 197 F. App'x 795 ( 2006 )


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  •                                                                        F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    October 3, 2006
    FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
    Clerk of Court
    U N ITED STA TES O F A M ER ICA,
    Plaintiff-Appellee,
    v.                                                  No. 06-6194
    (D.C. No. 04-CR-0179-R)
    R AFA EL LO ER A G A MB O A ,                       (W .D. Okla.)
    also known as Crook,
    Defendant-Appellant.
    OR D ER AND JUDGM ENT *
    Before KELLY, L UC ER O, and HA RTZ, Circuit Judges.
    The government has filed a motion to enforce the plea agreement with
    defendant Rafael Loera Gamboa. In the agreement, M r. Gamboa w aived his right
    to appeal his conviction and sentence on the charge of conspiring to distribute
    controlled substances. M r. Gamboa’s attorney does not oppose the motion to
    enforce; he has moved to withdraw as counsel of record. M r. Gamboa objects to
    *
    This panel 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). 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 This order and judgment is not binding precedent, except under the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. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    his attorney’s position. He has filed a pro se response to the government’s
    motion to enforce, which we construe liberally. See Haines v. Kerner, 
    404 U.S. 519
    , 520-21 (1972).
    M r. Gamboa contends that he was coerced into entering a guilty plea by
    various prosecutorial decisions, including placing him in the same holding cell as
    a codefendant and others involved in the drug conspiracy. M r. Gamboa claims he
    was stabbed as a consequence. He also maintains that his attorney and the federal
    district court judge conspired to coerce him to plead guilty. In addition, he
    apparently asserts that he was not given adequate consideration for his
    cooperation in the investigation of the drug conspiracy and other criminal cases.
    This court will enforce a criminal defendant’s waiver of his right to appeal
    so long as the following three elements are satisfied: (1) “the disputed appeal
    falls within the scope of the w aiver of appellate rights,” (2) the defendant’s
    waiver of his appellate rights was knowing and voluntary, and (3) enforcing the
    waiver w ill not result in a miscarriage of justice. United States v. Hahn, 
    359 F.3d 1315
    , 1325 (10th Cir. 2004) (en banc) (per curiam).
    M r. Gamboa opposes the motion to enforce based only on the second and
    third Hahn factors. Therefore, we do not address the first factor. See United
    -2-
    States v. Porter, 
    405 F.3d 1136
    , 1143 (10th Cir.) (declining to address Hahn
    factor not contested by defendant), cert. denied, 
    126 S. Ct. 550
     (2005). 1
    Knowing and Voluntary Waiver
    M r. Gamboa asserts that his consent to the plea agreement and waiver of
    appellate rights was not knowing and voluntary. To evaluate this assertion,
    we consider “whether the language of the plea agreement states that [he] entered
    the agreement knowingly and voluntarily” and whether there is “an adequate
    Federal Rule of Civil Procedure 11 colloquy.” Hahn, 
    359 F.3d at 1325
    . It is
    M r. Gamboa’s burden to demonstrate record evidence showing that he did not
    understand the waiver. 
    Id. at 1329
    .
    M r. Gamboa has failed to meet his burden. The plea agreement clearly
    described the charge to which he pled guilty, the factual basis for the charge,
    and the maximum penalty. In addition, the agreement stated that M r. Gamboa
    “knowingly and voluntarily waive[d] his right to . . . [a]ppeal or collaterally
    challenge his guilty plea and any other aspect of his conviction.” M ot. to
    Enforce, Attach. 2, at 7.
    M oreover, at the plea colloquy, M r. Gamboa stated that his guilty plea was
    “made voluntarily and completely of [his] own free choice.” 
    Id.,
     Attach. 3, at 6.
    In addition, he stated that he understood that he gave up his right to plead not
    1
    Nevertheless, it is clear that this appeal falls within the scope of the waiver
    of appellate rights.
    -3-
    guilty, that he was satisfied with the services of his attorney, that his attorney
    gave him appropriate advice with regard to his guilty plea, and that he gave up his
    right to appeal. Id. at 13-15. He also described his participation in the drug
    conspiracy on which his guilty plea was based, thus providing an adequate factual
    basis for the plea. See id. at 16-19. Finally, he declined the district court’s
    invitation to ask further questions or address any concerns. Id. at 19.
    M r. Gamboa has presented no evidence to demonstrate that he did not
    understand the waiver. His conclusory claims that his attorney and the district
    judge colluded to coerce him into pleading guilty are belied by his statement that
    he was satisfied with his attorney’s services and by the free and open exchange
    betw een M r. G amboa and the judge. See id. passim. Based on this record we
    conclude that M r. Gamboa know ingly and voluntarily waived his right to appeal
    his guilty plea.
    M iscarriage of Justice
    Construing M r. Gamboa’s pro se pleading liberally, we also consider
    whether enforcing the waiver w ill result in a miscarriage of justice.
    M iscarriage of justice results where: 1) the
    district court relied on an impermissible factor such as
    race; 2) ineffective assistance of counsel in connection
    with the negotiation of the waiver renders the waiver
    invalid; 3) the sentence exceeds the statutory maximum;
    or 4) the waiver is otherwise unlawful. To satisfy the
    last factor, the error must seriously affect the fairness,
    integrity or public reputation of judicial proceedings.
    -4-
    United States v. M aldonado, 
    410 F.3d 1231
    , 1233 (10th Cir.) (per curiam)
    (quotations, alterations, and citation omitted), cert. denied, 
    126 S. Ct. 577
     (2005).
    M r. Gamboa contends that he gave valuable information, at great risk to
    himself and his family, to a California police officer and other authorities.
    He claims that in exchange for that information, the charges were to have been
    dismissed. He further claims that he was required to file a pro se motion to
    dismiss the indictment because his attorney refused his instruction to do so. 2
    W e construe these arguments as a claim that the waiver is unlaw ful.
    The events of which M r. Gamboa complains occurred prior to his guilty
    plea. By his knowing and voluntary guilty plea, M r. Gamboa waived the claims
    based on those events because they do not challenge the district court’s
    jurisdiction. See United States v. Salazar, 
    323 F.3d 852
    , 856 (10th Cir. 2003)
    (“[I]t is w ell established that a voluntary and unconditional guilty plea waives all
    non-jurisdictional defenses.”). Accordingly, we conclude that M r. Gamboa has
    not met his burden to persuade this court that the waiver seriously affected the
    fairness, integrity or public reputation of the judicial proceedings. See
    M aldonado, 
    410 F.3d at 1233
     (holding defendant bears burden of persuasion
    that enforcement of waiver is unlawful).
    2
    W e do not address M r. Gamboa’s bald assertions that the record was
    tampered with to his detriment. Even so, he has not shown how any alleged
    alteration affected his plea agreement.
    -5-
    Conclusion
    W e GRANT Attorney Shannonhouse’s motion to withdraw as counsel for
    M r. Gamboa and the government’s motion to enforce the plea agreement. Appeal
    DISM ISSED. The mandate shall issue forthwith.
    ENTERED FOR THE COURT
    PER CURIAM
    -6-
    

Document Info

Docket Number: 06-6194

Citation Numbers: 197 F. App'x 795

Judges: Kelly, Lucero, Hartz

Filed Date: 10/3/2006

Precedential Status: Non-Precedential

Modified Date: 11/5/2024