United States v. Martinez

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 20, 2008
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-2295
(D.C. No. 02-CR-1055-JB)
MICHAEL SEVENS MARTINEZ, (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, O’BRIEN, and McCONNELL, Circuit Judges.
Defendant Michael Sevens Martinez pleaded guilty to second degree
murder in Indian country, in violation of 18 U.S.C. §§ 1111(a), (b), and 1153. He
did so pursuant to a plea agreement that stipulated to a twenty-five year sentence
and contained a waiver of his appellate rights. Despite the appeal waiver,
defendant filed an appeal. The government has now filed a motion to enforce the
*
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 This order and judgment is not binding precedent, except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
appeal waiver under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)
(en banc) (per curiam). We grant the motion to enforce and dismiss the appeal.
Martinez’s docketing statement states that he intends to appeal the district
court’s order denying his motion to dismiss the indictment as barred by the statute
of limitations set forth in 18 U.S.C. § 3282(a). After the district court denied this
motion to dismiss, Martinez pleaded guilty and signed a plea agreement stating, in
relevant part, that he “waives the right to appeal any component of his conviction
or sentence established pursuant to [Fed. R. Crim. P.] 11(c)(1)(C) and this plea
agreement.” Plea Agreement at 3, ¶ 7. Martinez argues, in response to the
government’s motion to enforce this waiver, that he never agreed not to appeal
the denial of his motion to dismiss, and therefore, his appeal is outside the scope
of the appeal waiver, was not knowingly and voluntarily entered into, and that it
would be a miscarriage of justice to enforce the waiver. We disagree, and
conclude that Martinez waived the right to appeal this claim in his plea
agreement.
In determining whether an appeal is precluded by a defendant’s plea
agreement waiver of appellate rights, we consider: “(1) whether the disputed
appeal falls within the scope of the waiver . . . ; (2) whether the defendant
knowingly and voluntarily waived his appellate rights; and (3) whether enforcing
the waiver would result in a miscarriage of justice.” Hahn, 359 F.3d at 1325.
A miscarriage of justice occurs when (1) the district court relies on an
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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, i.e., the error seriously affects the fairness, integrity or public
reputation of judicial proceedings. Id. at 1327.
As noted, Martinez waived his right to appeal any component of his
conviction in the plea agreement. Further, at the plea colloquy, the district court
asked Martinez if he understood that he was waiving his right to appeal both his
sentence and any component of his conviction or sentence, and defendant said
that he did understand this. Tr. of Plea Hr’g, at 12. The appeal waiver did not
provide any exception to the broad appeal waiver permitting him to challenge the
denial of his motion to dismiss. Thus, this claim is within the scope of the appeal
waiver. See United States v. Lyons, 510 F.3d 1225, 1233 (10th Cir. 2007)
(holding that defendant’s appeal of the denial of his motion to dismiss was within
scope of his appeal waiver because the plea agreement’s waiver provision did not
reserve this issue as an exception to the waiver).
Further, Martinez has not met his burden of demonstrating that his waiver
was not knowing and voluntary. He stated in his plea agreement that he
knowingly waived his right to appeal any component of his sentence. Further,
when questioned by the court during his plea colloquy, Martinez again stated he
understood he was waiving his right to appeal any component of his conviction or
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sentence. These admissions are entitled to great weight. See Blackledge v.
Allison, 431 U.S. 63, 74 (1977). Martinez does not present any evidence or point
to any other aspect of the proceedings that even suggests his appeal waiver was
not entered into knowingly and voluntarily. Our review of the plea agreement
and Martinez’s statements in open court establishes that his waiver of appellate
rights was both knowing and voluntary.
Finally, we conclude enforcement of the waiver would not result in a
miscarriage of justice. Martinez claims that the conviction and sentence are
unlawful because the district court erred in not dismissing the indictment. This
argument does not support a claim that “the waiver is otherwise unlawful.” Hahn,
359 F.3d at 1327. “The relevant question . . . is not whether [defendant’s]
sentence is unlawful . . ., but whether . . . his appeal waiver itself [is]
unenforceable.” United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005).
Martinez has not presented any argument that his appeal waiver itself was
unlawful, or that enforcement of the waiver would seriously affect the fairness,
integrity, or public reputation of the judicial proceedings.
Accordingly, we GRANT the government’s motion to enforce the appeal
waiver and DISMISS the appeal.
ENTERED FOR THE COURT
PER CURIAM
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