                                                                                 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.




                                            2
      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.
                                            3
“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)).



                                           4
                   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.



                                           5
      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

                                            6
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.
                                           8
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.




                                            9
                           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

                                            10
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.
                                           11
      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




                                          12
