                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                             May 6, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 19-2001
                                                   (D.C. No. 1:16-CR-04357-JAP-1)
 FRANCISCO GUZMAN-PLATEADO,                                   (D. N.M.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, KELLY, and McHUGH, Circuit Judges.
                  _________________________________

      This matter is before the court on the government’s motion to enforce the

appeal waiver in Francisco Guzman-Plateado’s plea agreement. Exercising

jurisdiction under 28 U.S.C. § 1291, we grant the motion and dismiss the appeal.

                                   BACKGROUND

      Guzman-Plateado pleaded guilty to reentry of a removed alien, in violation of

8 U.S.C. §§ 1326(a) and (b), and possession with intent to distribute heroin, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). The written plea agreement

included the following appeal waiver:



      *
         This order and judgment is not binding precedent, except under the doctrines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.
              The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C.
       § 3742 afford a defendant the right to appeal a conviction and the
       sentence imposed. Acknowledging that, the Defendant knowingly
       waives the right to appeal the Defendant’s conviction(s) and any
       sentence . . . at or under the maximum statutory penalty authorized by
       law. In addition, the Defendant agrees to waive any collateral attack on
       [his] conviction(s) and any sentence . . . except on the issue of defense
       counsel’s ineffective assistance. The appellate waiver in this plea
       agreement does not bar the defendant from seeking a sentence reduction
       pursuant to 18 U.S.C. § 3582(c), should the Sentencing Commission so
       authorize.

Mot. to Enforce, Ex. 1 at 9 (emphasis added). The agreement listed the elements of

both offenses and described the evidence against him, and by signing it,

Guzman-Plateado acknowledged that those facts provided a factual basis for his

guilty pleas. Id. at 3-5. The agreement also included a detailed explanation of the

possible penalties for each conviction and the immigration consequences of his plea.

Id. at 2-3, 8-9.

       The court provided an interpreter for Guzman-Plateado at his change-of-plea

hearing, and the interpreter was used throughout the hearing. Guzman-Plateado

confirmed that he had read and discussed the written plea agreement with counsel

before signing it. He assured the court that he understood “each and every term of

[the] plea agreement,” id., Ex. 2 at 10, and that his plea was voluntary, id. at 16.

After the court reminded him of the elements of the offenses, possible penalties, and

immigration consequences of the plea, they had the following colloquy about the

appeal waiver:

       THE COURT: [Y] our plea agreement contains a waiver of appeal
       rights. Specifically, you’re giving up your right to appeal your
       conviction and any sentence including any fine at or under the

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      maximum statutory penalty authorized by law. Do you understand your
      waiver of appeal rights, sir?

      THE DEFENDANT: Yes.

Id. at 15. Guzman-Plateado repeatedly declined to ask questions when given the

opportunity to do so, and when the court asked him toward the end of the advisement

whether he had “any questions for [the court] or [his] attorney before I ask you how

you plead to the charge[s],” he responded “No.” Id. at 16.

      At the sentencing hearing, the court adopted the guidelines range the parties

contemplated in the plea agreement and sentenced Guzman-Plateado within that

range to concurrent 70-month prison terms.

      Despite his broad appeal waiver, Guzman-Plateado now appeals. He opposes

the government’s motion to enforce the appeal waiver on the ground that his plea was

not knowingly and voluntarily.

                                    DISCUSSION

      Whether a defendant’s appeal waiver is enforceable is a question of law we

review de novo. United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir.

2008). In ruling on a motion to enforce, we consider: “(1) whether the disputed

appeal falls within the scope of the waiver of appellate rights; (2) whether the

defendant knowingly and voluntarily waived his appellate rights; and (3) whether

enforcing the waiver would result in a miscarriage of justice.” United States v. Hahn,

359 F.3d 1315, 1325 (10th Cir. 2004) (en banc).




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      Guzman-Plateado concedes that the appeal falls within the scope of the appeal

waiver, and he does not claim that enforcement of his plea would be a miscarriage of

justice. We thus limit our analysis to the question whether his appeal waiver was

knowing and voluntary. When making that determination,

      Hahn instructs us to look to the plea agreement and the explanation the
      district court provided to the defendant. Thus, we ordinarily look to
      (1) whether the language of the plea agreement states that the defendant
      entered the agreement knowingly and voluntarily; and (2) whether the
      district court conducted an adequate [Rule] 11 colloquy.

United States v. Rollings, 751 F.3d 1183, 1188 (10th Cir. 2014) (internal quotation

marks omitted). “[I]f the defendant did not voluntarily enter into the agreement, the

appellate waiver subsumed in the agreement also cannot stand.” Id. at 1189.

      Guzman-Plateado does not claim he did not understand the appeal waiver

itself. Instead, he claims his plea was not knowing and voluntary because he did not

understand the elements of the possession-with-intent-to-distribute charge.

Specifically, he claims counsel did not give him a Spanish-language version of the

written plea agreement and could not provide an adequate elemental advisement

because counsel did not speak Spanish or use an interpreter.

      But at the change-of-plea hearing, through the interpreter, Guzman-Plateado

responded “Yes” when the court asked whether his attorney had read the plea

agreement to him “word-for-word in its entirety in Spanish.” Mot. to Enforce, Ex. 2

at 10. He also acknowledged that he had read a Spanish-language version of the

superseding indictment, which detailed the elements of both offenses. Id. at 4-5.

In addition, the prosecutor explained the elements through the interpreter and

                                          4
Guzman-Plateado confirmed that he understood. Id. at 5-7. Although he told the

court during its factual-basis questioning that he is an addict and wanted the drugs for

his personal use, he admitted that he “intended to share that heroin with another

person,” and that there was thus a factual basis for his plea. Id. at 17-19. And when

the prosecutor explained to the court after that colloquy that the amount of drugs

found in Guzman-Plateado’s home was “not consistent with personal use” and was

instead “consistent with an intent to distribute,” Guzman-Plateado agreed that the

government would be able to prove those facts if the case went to trial. Id. at 19.

On this record, we conclude that Guzman-Plateado has failed to meet his burden of

showing that his plea, and in particular the appeal waiver, was not knowing and

voluntary.

      To the extent Guzman-Plateado claims his attorney was ineffective, that claim

also falls within the scope of the appeal waiver, which contemplates that an

ineffective assistance of counsel claim could be raised in a “collateral attack to [his]

conviction(s) and [] sentence.” Mot. to Enforce, Ex. 1 at 9; see also United States v.

Porter, 405 F.3d 1136, 1144 (10th Cir. 2005) (explaining that the rule generally

barring ineffective assistance claims on direct review “applies even where a

defendant seeks to invalidate an appellate waiver based on ineffective assistance of

counsel”); Hahn, 359 F.3d at 1327 n.13 (“Generally, we only consider ineffective

assistance of counsel claims on collateral review. Our holding today does not disturb

this longstanding rule.” (citation omitted)).



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                                CONCLUSION

      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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