United States v. Carrillo-Lopez

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 22, 2014
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 14-6112
(D.C. No. 5:14-CR-00006-C-1)
MARTIN CARRILLO-LOPEZ, (W.D. Okla.)
a/k/a Jonathan Pacheco Bernal,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before KELLY, EBEL, and LUCERO, Circuit Judges.
Appellant Martin Carrillo-Lopez entered into a plea agreement in which he
waived his right to appeal his conviction and sentence, with the exception of a few
limited circumstances not relevant here. The district court sentenced him to
70 months’ imprisonment, which was the low end of the Sentencing Guidelines
range. Mr. Carrillo-Lopez filed an appeal despite his waiver; the government seeks
*
This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
to enforce the plea agreement and asks this court to dismiss the appeal. See United
States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).
The plea agreement, which Mr. Carrillo-Lopez signed, states that he
“knowingly and voluntarily waives” his right to appeal his sentence or conviction.
Plea Agreement at 7. And the transcript of the hearing at which Mr. Carrillo-Lopez
changed his plea to “guilty” evidences his understanding that he was agreeing to
waive his right to appeal, as well as his understanding that the court would be advised
in sentencing by the Sentencing Guidelines range and that it was not bound by any
predictions his attorney may have made about what that range would be. Change of
Plea Tr. at 9-12.
Mr. Carrillo-Lopez argues that his appeal waiver was not knowing and
voluntary because it was based on his attorney’s lower prediction of what the
guidelines range would be. The district court, however, was very clear in the plea
colloquy that the court was not bound by any predictions made by others regarding
what the guidelines range. He further argues that his waiver resulted in a miscarriage
of justice because his sentence was “otherwise unlawful.” Hahn, 359 F.3d at 1327.
His basis for this assertion is that “counsel for the government, in advocating at the
sentencing hearing for a ‘low-end guidelines sentence,’ did not act in good faith in
light of Mr. [Carrillo-Lopez’s] safety-valve eligibility.” Resp. at 2. He states that
this “negatively impacts the fairness, integrity, or public reputation of judicial
proceedings.” Id. Mr. Carrillo-Lopez’s one-sentence statement is insufficient to
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establish (or even argue) as to how the fairness, integrity, or public reputation of the
judicial proceeding was negatively impacted. Enforcing this knowing and voluntary
waiver will not result in a miscarriage of justice. The Motion to Enforce Appeal
Waiver is granted, and the appeal is dismissed.
Entered for the Court
Per Curiam
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