United States v. Bonilla

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 1, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 18-6016
v. (D.C. No. 5:17-CR-00149-C-1)
(W.D. Oklahoma)
ARMANDO BONILLA,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
_________________________________
Armando Bonilla appeals the district court’s imposition of a $5000 special
assessment imposed under 18 U.S.C. § 3014(a). On appeal, the government has
invoked the appellate waiver contained in Mr. Bonilla’s plea agreement. We conclude
Mr. Bonilla’s challenge falls within the scope of the appellate waiver, that he
knowingly and voluntarily waived his appellate rights, and that enforcing the waiver
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
would not result in a miscarriage of justice. Accordingly, we enforce the appellate
waiver and dismiss Mr. Bonilla’s appeal.
I. BACKGROUND
Mr. Bonilla, a foreign citizen with an Immigration and Customs Enforcement
detainer, pleaded guilty to one count of receiving child pornography, in violation of
18 U.S.C. § 2252A(a)(2) and (b)(1). The plea agreement advised Mr. Bonilla of the
sentencing consequences he faced, including a $250,000 fine, a $100 mandatory
special assessment, and a $5000 additional special assessment. The plea agreement
contained an appellate waiver, which stated, in pertinent part:
[D]efendant waives his right to appeal his sentence as imposed by the
Court, including any restitution, and the manner in which the sentence is
determined. If the sentence is above the advisory guideline range
determined by the Court to apply to his case, this waiver does not
include the defendant’s right to appeal specifically the substantive
reasonableness of his sentence[.]
ROA Vol. I at 41. At his plea hearing, the government stated the sentencing
consequences Mr. Bonilla faced, again advising him regarding the $5000 additional
special assessment. The government and the district court also advised Mr. Bonilla of
the terms of the appellate waiver. Mr. Bonilla acknowledged that he understood the
appellate waiver and the sentencing consequences he faced by pleading guilty, and he
stated he was satisfied with his counsel’s services. The district court found that Mr.
Bonilla “voluntarily and knowingly” entered a plea of guilty “with full understanding
of the rights that [he was] giving up.” Plea Transcript at 18.
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A Presentence Investigation Report (“PSR”) presented the following facts
regarding Mr. Bonilla’s financial situation. For the year and three months leading up
to his arrest, Mr. Bonilla was employed as a general laborer and had a monthly
income of $2080. From 2014 through 2016, Mr. Bonilla was employed as an oilfield
pusher. And, for the vast majority of time between September 2008 and April 2012,
Mr. Bonilla was employed as a welder and had a monthly income of $2426.67. In a
PSR interview, Mr. Bonilla “reported he has property in Mexico, valued at $10,000”
and “has a Jeep Cherokee in Mexico.” ROA Vol. II at 20. Mr. Bonilla, however,
indicated that it would be hard to sell his property because there is no way to
“advertise” the property for sale given the drug cartel activity. Id. Mr. Bonilla further
indicated that he provides financial support for his three children and for other family
members. Finally, Mr. Bonilla “denied having any liabilities.”1 Id.
The PSR concluded that Mr. Bonilla did not have the ability to pay a fine.
However, the PSR identified the $5000 additional special assessment under 18
U.S.C. § 3014 as applying to any non-indigent person without stating any conclusion
as to whether Mr. Bonilla was indigent. Mr. Bonilla objected to the PSR’s discussion
of the $5000 special assessment and specifically “request[ed] findings of inability to
pay the $5000.00 special assessment based on the fact that he is indigent. . . .” Id. at
27 (emphasis added). At sentencing, the district court concluded that Mr. Bonilla
1
The PSR noted that some of the information provided by Mr. Bonilla during
his PSR interview was “inconsistent with the affidavit for court appointed counsel, as
well as the financial information reported during his pretrial interview.” ROA Vol. II
at 20; see id. at 26–27.
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“has assets and the ability to earn [money], and that makes him not indigent.” ROA
Vol. III at 14; see id. at 12–13. Accordingly, the district court imposed the $5000
special assessment as part of Mr. Bonilla’s sentence.
On appeal, Mr. Bonilla challenges the imposition of the $5000 special
assessment, arguing that he is indigent. The government filed a motion to dismiss the
appeal based on Mr. Bonilla’s appellate waiver. A motions panel denied the motion
without prejudice. The parties briefed the merits of Mr. Bonilla’s appeal, and the
government reasserted its position that the appellate waiver requires dismissal of
Mr. Bonilla’s appeal.
II. DISCUSSION
Where the government seeks dismissal of an appeal based on an appellate
waiver, we must determine whether the waiver precludes review of the issue on
appeal before considering the merits of the appeal. United States v. Gordon, 480 F.3d
1205, 1207 (10th Cir. 2007). “Whether a defendant’s appellate waiver as set forth in
a plea agreement is enforceable is a question of law we review de novo.” United
States v. Lonjose, 663 F.3d 1292, 1297 (10th Cir. 2011). “This Court will enforce a
defendant’s appellate waiver so long as: (1) the disputed issue falls within the scope
of the waiver of appellate rights; (2) the defendant knowingly and voluntarily waived
his appellate rights; and (3) enforcing the waiver would not result in a miscarriage of
justice.” Id. (citing United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en
banc)).
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A. Appellate Argument Within Scope of Waiver
“We construe a defendant’s plea agreement according to contract principles
and what the defendant reasonably understood when he entered his plea.” Id.
(internal quotation marks omitted). “We strictly construe the scope of appellate
waivers[,] and any ambiguities in these agreements are read against the Government
and in favor of a defendant’s appellate rights.” United States v. Porter, 405 F.3d
1136, 1142 (10th Cir. 2005) (internal quotation marks omitted). “Analysis of the
scope of a waiver of appellate rights must extend beyond discrete clauses. A contract
must be ‘interpreted as a whole,’ and ‘[w]ords and other conduct are interpreted in
the light of all the circumstances.’” Gordon, 480 F.3d at 1209 (quoting Restatement
(Second) of Contracts § 202(1), (2) (1981)).
The appellate waiver in Mr. Bonilla’s plea agreement precluded an appeal
challenging “his sentence as imposed by the Court . . . and the manner in which the
sentence is determined.” ROA Vol. 1 at 41. The only exception to the waiver was for
a substantive reasonableness challenge to a sentence “above the advisory guideline
range.” Id. Relative to the imposition of a special assessment, the Guidelines adopt
“the amount prescribed by statute” rather than providing an independent advisory
range. United States Sentencing Guidelines Manual § 5E1.3 (2016). Thus, where 18
U.S.C. § 3014 prescribed an additional special assessment of $5000, the district
court’s imposition of a $5000 additional special assessment was not above the
guideline range.
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Furthermore, special assessments are “punitive” in nature, United States v.
King, 891 F.2d 780, 783 (10th Cir. 1989), such that the imposition of a special
assessment is part of a defendant’s sentence, see United States v. Pethick, 513 F.3d
1200, 1201 (10th Cir. 2008) (describing sentence as including special assessment).
To that point, the plea agreement clearly advised Mr. Bonilla that he faced the $5000
additional special assessment as part of his sentence and, at the plea hearing, the
government stated that Mr. Bonilla would face the $5000 special assessment if the
district court concluded he was not indigent. Yet, Mr. Bonilla, through the plea
agreement, did not seek to reserve the right to appeal the district court’s indigency
determination. Therefore, where (1) the additional special assessment was part of Mr.
Bonilla’s sentence; (2) the special assessment imposed by the district court was not
above the amount prescribed by the Guidelines; and (3) Mr. Bonilla did not reserve
the right to appeal the district court’s indigency determination, Mr. Bonilla’s
challenge to the district court’s imposition of the $5000 special assessment falls
within the scope of the appellate waiver.
In an attempt to escape this conclusion, Mr. Bonilla argues that a challenge to
a sentence in excess of the district court’s statutory authority does not fall within the
scope of an appellate waiver. In Gordon, we concluded that the defendant’s waiver of
his right to appeal his sentence did not foreclose a challenge to the imposition of a
sentence “beyond that which could be lawfully imposed.” 480 F.3d at 1209; see id.
(“A plea agreement permitting a court to impose a restitution order beyond that
authorized by statute might well be unenforceable on grounds of public policy.”). We
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have since clarified that the exception from Gordon “is extremely narrow and applies
only in the case where there is no factual dispute . . . and the legality of the district
court’s [sentence] can therefore be reviewed solely as a question of law.” United
States v. Cooper, 498 F.3d 1156, 1160 (10th Cir. 2007) (emphasis added).
As required by 18 U.S.C. § 3014, the district court, before imposing the
additional special assessment, concluded that Mr. Bonilla was not indigent.
Encompassed in Mr. Bonilla’s challenge on appeal is the issue of whether or not he
was indigent. But whether a defendant is indigent is not a pure question of law. See
United States v. Kelley, 861 F.3d 790, 801 (8th Cir. 2017) (“The indigence
determination under § 3014 is a fact issue, and as in analogous contexts, we will
review the district court’s fact-finding for clear error.”); cf. United States v. Trujillo,
136 F.3d 1388, 1398 (10th Cir. 1998) (“We reject a district court’s findings regarding
a defendant’s ability to pay a fine only if they are clearly erroneous.”).
In Mr. Bonilla’s case, for instance, the PSR shows there were disputed facts
underlying whether Mr. Bonilla was indigent. And the sentencing transcript shows
the district court relied on Mr. Bonilla’s assets in Mexico and his ability to work and
earn money to conclude that Mr. Bonilla was not indigent. Even more emblematic of
the factual nature of the issue before us, in his response to the government’s motion
to dismiss, Mr. Bonilla admitted that factual disputes arose at sentencing relative to
whether he was indigent. Response to Motion to Dismiss at 9–10 (“There was some
debate at sentencing whether Mr. Bonilla or his mother had assets in Mexico and the
value of those assets, especially in light of the fact he would be deported to return to
7
live with his mother in Mexico after he was released from custody.”). Mr. Bonilla’s
response to the motion to dismiss went on to state: “Any factual finding suggesting
Mr. Bonilla was not indigent at the time of sentencing is erroneous and Mr. Bonilla
should be able to make those arguments on appeal.” Id. at 10. Accordingly, Mr.
Bonilla’s appellate challenge to the imposition of the special assessment is not solely
a question of law. Therefore, Mr. Bonilla’s challenge does not fall within Gordon’s
“extremely narrow” exception regarding the scope of appellate waivers.2
B. Knowing & Voluntary Waiver of Appellate Rights
“We only enforce waivers that defendants enter into knowingly and
voluntarily.” United States v. Tanner, 721 F.3d 1231, 1233 (10th Cir. 2013)
(quotation marks omitted). In determining whether a defendant knowingly and
voluntarily waived his appellate rights we consider (1) “whether the language of the
plea agreement states that the defendant entered the agreement knowingly and
voluntarily” and then (2) whether the district court conducted “an adequate Federal
Rule of Criminal Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. The burden is on
2
Mr. Bonilla directs us to United States v. Janatsch, 722 F. App’x 806, 810
(10th Cir. 2018), for the proposition that a challenge to the imposition of a special
assessment under 18 U.S.C. § 3014 is a question of law falling within the exception
to appellate waivers recognized in United States v. Gordon, 480 F.3d 1205, 1209
(10th Cir. 2007). Janatsch, however, does not provide any explanation regarding why
that defendant’s challenge to the special assessment was a pure question of law, does
not discuss United States v. Cooper, 498 F.3d 1156, 1160 (10th Cir. 2007), and
appears inconsistent with our previous conclusion that a defendant’s financial ability
to satisfy a monetary penalty involves a question of fact. Thus, in addition to not
being precedential authority, Janatsch has minimal persuasive value within the
context of Mr. Bonilla’s effort to invoke the Gordon exception despite effectively
challenging the district court’s factual findings regarding indigency.
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the defendant to demonstrate that “his waiver was not knowing and voluntary.”
Tanner, 721 F.3d at 1235.
Mr. Bonilla argues that “[t]he legal issue raised by the district court’s
imposition of the $5,000.00 special assessment was not foreseen by the parties when
the agreement was executed.” Response to Government’s Motion to Dismiss at 6.
This assertion cannot be squared with the plea agreement and the plea colloquy. As
stated in our discussion of the scope of the appellate waiver, the plea agreement
clearly identified the fact that Mr. Bonilla was subject to the $5000 additional special
assessment. Further, during the plea colloquy, the government, in reciting the
penalties Mr. Bonilla faced by pleading guilty, stated: “And if the Court ultimately
determines that Mr. Bonilla is not indigent—and he may well be—he could also get a
$5,000 additional special assessment.” Plea Transcript at 4. Thereafter, Mr. Bonilla,
without raising any questions regarding the district court’s potential to find that he
was not indigent, indicated that he understood the punishments he faced.
Accordingly, contrary to Mr. Bonilla’s argument on appeal, the record demonstrates
that Mr. Bonilla was advised that he faced a $5000 additional special assessment and
the parties contemplated the possibility that the district court might conclude he was
not indigent. The fact the district court subsequently rejected Mr. Bonilla’s argument
that he was indigent does not alter the knowing and voluntary nature of Mr. Bonilla’s
appellate waiver.
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C. No Miscarriage of Justice
“The burden rests with the defendant to demonstrate that the appeal waiver
results in a miscarriage of justice.” United States v. Anderson, 374 F.3d 955, 959
(10th Cir. 2004). To satisfy this burden, the defendant must demonstrate the appellate
waiver is
subject to certain exceptions, including [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. Mr. Bonilla relies on the fourth exception. “For the waiver
to be invalid on the ground of unlawfulness, the unlawfulness must seriously affect
the fairness, integrity or public reputation of judicial proceedings.” United States v.
Sandoval, 477 F.3d 1204, 1208 (10th Cir. 2007) (internal quotation marks omitted).
Here, none of Mr. Bonilla’s three arguments under the fourth exception demonstrates
that the district court acted unlawfully.
First, Mr. Bonilla contends that the imposition of the additional special
assessment is unlawful because, where he qualified for court-appointed counsel, he
must have been indigent as a matter of law. But “[a] defendant need not be ‘indigent’
to qualify for appointed counsel. Rather, he or she need only be financially unable to
obtain counsel.” United States v. Nichols, 841 F.2d 1485, 1506 (10th Cir. 1988)
(internal quotation marks omitted). In this sense the “[f]inancial inability” standard
for obtaining court-appointed counsel “is a lesser standard than indigency.” Id. Thus,
the fact that Mr. Bonilla received court-appointed counsel does not demonstrate that
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the district court acted unlawfully when determining that Mr. Bonilla was not
indigent for purposes of the additional special assessment.
Second, Mr. Bonilla suggests the district court was required to limit its
indigency analysis to Mr. Bonilla’s financial status at the time of sentencing. But,
Mr. Bonilla does not cite any case law in support of this proposition, and the text of
18 U.S.C. § 3014(a) does not provide any guidance regarding how a district court
should evaluate indigency. Furthermore, circuit courts have approved of considering
future earning capacity when determining if a defendant is indigent for purposes of a
special assessment under § 3014. See Kelley, 861 F.3d at 802 (noting defendant’s
college degree and employable skills when concluding that, despite negative net
worth, the defendant’s “ability to earn money in the future precluded a finding of
indigence for purposes of § 3014”); see also United States v. Rodgers, 711 F. App’x
229, 229 (5th Cir. 2018) (citing Kelley for proposition that district court may consider
“future earnings or employability” when determining indigency for purposes of
§ 3014); United States v. Janatsch, 722 F. App’x 806, 811 (10th Cir. 2018)
(“[N]othing in [§ 3014] precludes an examination of future ability to pay as part of a
holistic assessment of the indigency determination.”). Accordingly, Mr. Bonilla’s
second argument does not establish that the district court acted unlawfully when
imposing the additional special assessment.3
3
Even if the analysis was limited to the time of sentencing, Mr. Bonilla’s
statements, as recorded in the PSR, indicate that, at the time of sentencing, the value
of his assets exceeded the $5000 additional special assessment.
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Finally, Mr. Bonilla contends that his deportation following completion of his
term of imprisonment renders him indigent, as a matter of law, because it limits his
future ability to earn. We are unpersuaded by this argument. The additional special
assessment shall remain in force for twenty years after entry of judgment or twenty
years after release from imprisonment, whichever is later. See 18 U.S.C. §§ 3014(g),
3613(b). Mr. Bonilla fails to demonstrate that the district court could not have
concluded that Mr. Bonilla could, while in Mexico, earn sufficient wages to pay the
special assessment in due time. Cf. United States v. Thompson, 227 F.3d 43, 46 (2d
Cir. 2000) (collecting cases and concluding likelihood of deportation does not
immunize defendant from monetary penalties and that fine may be imposed on
individual facing immediate deportation). Accordingly, Mr. Bonilla fails to advance
an argument that satisfies the fourth miscarriage of justice exception.
III. CONCLUSION
Because Mr. Bonilla’s challenge on appeal falls within the scope of the valid
and enforceable appellate waiver in his plea agreement, we DISMISS the appeal.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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