United States v. Urbano Nario-Marquez , 406 F. App'x 145 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10220
Plaintiff - Appellee, D.C. No. 4:01-cr-01662-FRZ-JCG
v.
MEMORANDUM*
URBANO NARIO-MARQUEZ,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 08-10225
Plaintiff - Appellee, D.C. No. 4:06-cr-01498-FRZ-JCG
v.
URBANO NARIO-MARQUEZ,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 08-10227
Plaintiff - Appellee, D.C. No. 4:06-cr-01499-FRZ-JCG
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
URBANO NARIO-MARQUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge , Presiding
Submitted December 10, 2010**
San Francisco, California
Before: HUG, D.W. NELSON and McKEOWN, Circuit Judges.
This appeal involves three consolidated cases. In 08-10225 (“Case 98”),
Urbano Nario Marquez appeals his jury conviction and sentence for being a felon
in possession of a firearm, being an illegal alien in possession of a firearm,
possession with intent to distribute cocaine base (crack cocaine), possession with
intent to distribute cocaine, and possession of a firearm in furtherance of a drug
trafficking offense (“count 5”).
In 08-10227 (“Case 99”), Nario Marquez appeals his conviction by guilty
plea and sentence for being a felon in possession of a firearm, being an illegal alien
in possession of a firearm, and illegal reentry after deportation.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
In 08-10220 (“Case 62”), Nario Marquez appeals the sentence imposed upon
revocation of supervised release.
Following his jury trial conviction in Case 98, Nario Marquez entered into a
guilty plea agreement governing all three cases. In addition to its other provisions,
the plea agreement stated that by pleading guilty, Nario Marquez was waiving his
right to appeal or collaterally attack his sentences or convictions and that the
waiver “shall result in the dismissal of any appeal or collateral attack the defendant
might file challenging his sentence or conviction in this case.” The agreement
stated that the waiver applied to Case 98, Case 99, and Case 62. The remaining
facts are known to the parties, and we do not repeat them.
Nario Marquez argues that the appellate waiver is unenforceable because
ineffective assistance of counsel resulted in a waiver that was neither knowingly
nor voluntarily made.1 We review de novo whether a defendant has waived his
right to appeal by entering into a plea agreement and the validity of such a waiver.
1
In his reply brief, Nario Marquez raises two additional arguments
regarding the validity of the waiver. He contends that the waiver is unenforceable
because he never expressly waived his right to appeal and because his sentence is
not in accordance with the negotiated agreement. We decline to consider these
arguments because “[t]his court will not ordinarily consider matters on appeal that
are not specifically and distinctly argued in appellant’s opening brief.” Image
Technical Serv., Inc. v. Eastman Kodak Co., 136 F.3d 1354, 1356 (9th Cir. 1998)
(quotation omitted).
3
United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). Generally, if a
defendant has entered into a valid unconditional plea agreement “and still raises
such issues on appeal, the government objects and the court dismisses the appeal.”
United States v. Jacobo Castillo, 496 F.3d 947, 954 (9th Cir. 2007) (en banc)
(citations omitted). Jurisdiction is proper under 28 U.S.C. § 1291, and we dismiss
all appeals.
To be enforceable, a defendant’s waiver of his appellate rights through a
guilty plea agreement must be made knowingly and voluntarily. Jeronimo, 398
F.3d at 1153. “[A] waiver of the right to appeal is knowing and voluntary where
the plea agreement as a whole was knowing and voluntarily made.” Id. at 1154.
Ineffective assistance of counsel can render a guilty plea–and the waiver contained
therein–invalid. See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). To prevail on a
claim of ineffective assistance of counsel based on the contention that a guilty plea
was not knowing and voluntary, the defendant must demonstrate that (1) counsel’s
representations fell below the range of competence demanded of attorneys in
criminal cases, and (2) there is a reasonable probability that, but for counsel’s
errors, the petitioner would not have pled guilty and would have insisted on going
to trial. See id.4
Even assuming that Nario Marquez’s attorney’s performance was
constitutionally deficient, the ineffective assistance of counsel claim fails because
the record does not support Nario Marquez’s contention that he would have
insisted on going to trial had he known about the mandatory consecutive sentence
on count 5. During the sentencing hearing, once the judge realized that Nario
Marquez’s attorney had misinformed his client, the judge carefully explained that
the agreement resulted in a minimum sentence of 184 months imprisonment and
that he had no authority to run Nario Marquez’s 60-month count 5 sentence
concurrently to any other sentence. The judge then granted Nario Marquez and his
attorney a recess to discuss this information. Following this conversation, Nario
Marquez, through counsel, informed the court that he was ready to proceed and
wanted to go forward with sentencing. Nario Marquez did not request a
continuance or to withdraw his guilty plea. Thus, he has not demonstrated a
reasonable probability that “but for” his counsel’s error, he would have proceeded
to trial.
Moreover, even with the unanticipated consecutive sentence on count 5,
Nario Marquez still benefited from the plea agreement. The agreement provided
that his sentence in Case 99 would run concurrently with the sentence he received
in Case 98. Essentially, the agreement promised that he would not serve additional
5
time for Case 99. Had he gone to trial in Case 99 and lost, he faced a 10-year
maximum sentence on each of the three counts. For these reasons, his ineffective
assistance of counsel claim fails and we dismiss his appeals.
DISMISSED.
6