                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 14, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                           FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

    v.                                                   No. 09-2127
                                               (D.C. No. 1:09-CR-00036-BB-1)
    MANUEL ORDONEZ-MENDOZA,                               (D. N.M.)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, EBEL, and TYMKOVICH, Circuit Judges.



         Manuel Ordonez-Mendoza pleaded guilty to violating 8 U.S.C. § 1326 by

being an alien illegally present in the United States after having been removed.

The Guidelines calculations used to reach his thirty-month sentence were

controlled in part by certain stipulations in his plea agreement, as permitted by

Fed. R. Crim. P. 11(c)(1)(C). Although the plea agreement also contained a



*
      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 This order and judgment is not binding precedent, except under the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.
waiver of the right to appeal, Mr. Ordonez-Mendoza appealed. The United States

has moved to enforce the appeal waiver pursuant to United States v. Hahn,

359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Mr. Ordonez-Mendoza

has responded.

      Under Hahn, we consider three elements: “(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.” 359 F.3d at 1325.

Mr. Ordonez-Mendoza challenges each of these elements. 1

                              Within Scope of Waiver

      The first Hahn factor is whether the appeal falls within the scope of the

appellate waiver. Id. “We narrowly construe the scope of [a defendant’s] waiver

of appeal rights[,] [b]ut we do not hesitate to hold a defendant to the terms of a

lawful plea agreement.” United States v. Sandoval, 477 F.3d 1204, 1206

(10th Cir. 2007) (citation and quotation omitted).

      The plea agreement states “[t]he Defendant is aware that federal law

affords a Defendant the right to appeal the sentence imposed. Acknowledging


1
      As a general proposition, Mr. Ordonez-Mendoza also “contends circuit
courts should not enforce sentencing appeal waivers[.]” Aplt. Resp. at 19. He
properly concedes, however, that this panel is bound to follow this court’s
published decisions, unless there is intervening Supreme Court or en banc
precedent. See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per curiam).
Thus, this panel cannot overrule Hahn.

                                         -2-
that, the Defendant knowingly waives the right to appeal any sentence within the

applicable sentencing guideline range and imposed in conformity with this plea

agreement.” Mot. to Enforce, Attach. 1 at 5. Mr. Ordonez-Mendoza seeks to

raise two issues on appeal: (1) he was denied his right to allocution at

sentencing, and (2) the district court misunderstood the breadth of its discretion to

reject the Rule 11(c)(1)(C) plea agreement. He argues that neither of these issues

is within the scope of the waiver, because the waiver concerns only the length of

his sentence. We disagree. The waiver plainly addresses all challenges to a

sentence within the Guidelines range calculated by the court. See United States v.

Smith, 500 F.3d 1206, 1210 (10th Cir. 2007) (stating that the waiver of “‘the right

to appeal the sentence imposed in this case,’” except for an upward departure,

“encompasses all appellate challenges to the sentence other than those falling

within the explicit exception for challenges to upward departures”); Sandoval,

477 F.3d at 1206-07 (waiver of “‘right to appeal any sentence within the guideline

range applicable to the statute of conviction as determined by the court’”

“precludes any appeal of [the defendant’s] sentence other than an upward

departure”). Mr. Ordonez-Mendoza’s sentence was at the low end of the

applicable Guidelines range, and there is no indication that it contravened any

portion of the plea agreement. Accordingly, the appeal falls within the scope of

the waiver of appellate rights.




                                         -3-
                           Knowing and Voluntary Waiver

      In determining whether the appeal waiver was made knowingly and

voluntarily, we consider “whether the language of the plea agreement states that

[Mr. Ordonez-Mendoza] entered the agreement knowingly and voluntarily” and

whether there is “an adequate Federal Rule of Criminal Procedure 11 colloquy.”

Hahn, 359 F.3d at 1325. Mr. Ordonez-Mendoza bears the “burden to present

evidence from the record establishing that he did not understand the waiver.”

United States v. Edgar, 348 F.3d 867, 872-73 (10th Cir. 2003). 2

      The plea agreement indicates that the waiver was knowing and voluntary.

The right to appeal and the waiver of that right is clearly set forth in the

agreement, and the waiver is represented to be knowing. See Mot. to Enforce,

Attach. 1 at 5. Further, the agreement states that the plea “is freely and

voluntarily made.” Id. at 6. And just before Mr. Ordonez-Mendoza’s signature, it

states, “I have read this agreement and carefully reviewed every part of it with my

attorney in my native language. . . . I understand the agreement and voluntarily

sign it.” Id.

      Mr. Ordonez-Mendoza argues that the plea colloquy was inadequate

because the court did not specifically discuss the appeal waiver. He admits that


2
       “Mr. Ordonez-Mendoza contends this Court should do as other circuits do
and require that the record clearly establish the defendant understood the full
significance of the appellate waiver,” Aplt. Resp. at 16, but he recognizes that, as
discussed in footnote 1, this panel must apply the court’s binding precedent.

                                          -4-
the waiver was mentioned at least two times during the colloquy, but he objects

that the waiver “was not read in open court nor was it explained any further.”

Aplt. Resp. at 5.

      While the court did not discuss the waiver, it was mentioned during the

prosecutor’s summary of the plea agreement, Mot. to Enforce, Attach. 2 at 26,

and then it was raised again by defense counsel, who assured the court that

Mr. Ordonez-Mendoza was aware of the waiver, id. at 36. The court also

confirmed that Mr. Ordonez-Mendoza had been read the plea agreement in

Spanish, that his attorney had gone over every part of it with him, and that he

signed it freely and voluntarily. Id. at 24-25. Even assuming that the court erred

by not discussing the waiver in the face of counsel’s explicit representation, such

omission would not constitute plain error, see Edgar, 348 F.3d at 871 (noting that

the standard of review is plain error), because it did not affect

Mr. Ordonez-Mendoza’s substantial rights. “In the context of a plea agreement,

an error is prejudicial if the defendant has shown that he would not have pleaded

guilty if the district court had complied with [Fed. R. Crim. P.] 11(b)(1)(N).”

Edgar, 348 F.3d at 872. There is nothing in the record to show that

Mr. Ordonez-Mendoza would not have pleaded guilty if the district court had

further addressed the appellate waiver during the Rule 11 colloquy.




                                          -5-
      Because there is no record evidence to dispute Mr. Ordonez-Mendoza’s

contemporaneous written and verbal assertions of a knowing and voluntary

waiver, we conclude that the waiver was knowing and voluntary.

                                Miscarriage of Justice

      Finally, we consider whether enforcing the waiver would result in a

miscarriage of justice. Hahn, 359 F.3d at 1325. This element requires

Mr. Ordonez-Mendoza to show (a) his sentence relied on an impermissible factor

such as race; (b) ineffective assistance of counsel in connection with the

negotiation of the appeal waiver rendered the waiver invalid; (c) his sentence

exceeded the statutory maximum; or (d) his appeal waiver is otherwise unlawful

and the error “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” Id. at 1327 (quotation omitted).

      Mr. Ordonez-Mendoza contends that the waiver is unlawful because he

pleaded guilty under the belief that the court’s sentencing process would protect

his right to allocution. See Mot. to Enforce, Attach. 2 at 41 (informing

Mr. Ordonez-Mendoza during the plea colloquy that he would be entitled to speak

to the court before sentencing). A denial of allocution has been suggested as an

example of an error that seriously affects the fairness, integrity, or public

reputation of judicial proceedings. See United States v. Gonzalez-Huerta,

403 F.3d 727, 736, 739 (10th Cir. 2005) (en banc) (“courts generally have held

the fourth prong [of plain-error review, that the error must seriously affect the

                                          -6-
fairness, integrity, or public reputation of judicial proceedings] met . . . when the

sentencing court denies the defendant his right to allocution”) (citing United

States v. Adams, 252 F.3d 276, 288-89 (3d Cir. 2001)); see also United States v.

Jarvi, 537 F.3d 1256, 1262 (10th Cir. 2008) (“[A] denial of allocution is per se

prejudicial and requires a remand without an investigation of prejudice.”). But

Mr. Ordonez-Mendoza was not denied his right to allocution.

      During the sentencing hearing, the court asked whether “[d]efendant,

defense counsel, or both wish to be heard prior to sentencing?” Mot. to Enforce,

Attach. 3 at 3. Defense counsel spoke, then the court asked the prosecutor if the

United States wished to respond. Mr. Ordonez-Mendoza did not speak. He

argues that he was denied allocution because the court should have afforded him

an explicit opportunity to speak after his counsel had finished. The court

included him in the initial invitation to speak, however, and it was not required

explicitly to renew that invitation after defense counsel’s presentation. See

United States v. Archer, 70 F.3d 1149, 1152 (10th Cir. 1995); see also United

States v. Franklin, 902 F.2d 501, 507 (7th Cir. 1990) (cited in Archer).

Accordingly, we need not decide whether it would be a miscarriage of justice to

enforce an appeal waiver where a defendant was denied allocution.

      Mr. Ordonez-Mendoza also contends that enforcing the waiver with regard

to his argument that the district court misconstrued its ability to reject the plea

agreement would result in a miscarriage of justice because “it would uphold a

                                          -7-
waiver contained in an agreement the district court unlawfully accepted.” Aplt.

Resp. at 18-19. For two reasons, we are not persuaded that enforcing the waiver

would result in a miscarriage of justice under these circumstances.

      First, there is no support for the proposition that the district court

misunderstood its ability to reject the Rule 11(c)(1)(C) plea agreement. To the

contrary, the court specifically noted that its choices were to follow the agreement

or to reject it. See Mot. to Enforce, Attach. 3 at 5. Mr. Ordonez-Mendoza infers

from the court’s statements about limitations on its sentencing discretion that the

court, in the absence of a Rule 11(c)(1)(C) agreement, would have sentenced him

to fewer than thirty months. According to his argument, then, the district court

should have rejected the plea agreement in order to sentence him as it believed

appropriate. But nothing in the record supports the inference that the court

believed a lower sentence would be appropriate.

      Second, at sentencing, Mr. Ordonez-Mendoza affirmatively urged the

district court to follow the plea agreement. See id. Therefore, he has waived any

ability, on appeal, to take the position that the court should have rejected the

agreement, not followed it. See United States v. Teague, 443 F.3d 1310, 1314

(10th Cir. 2006) (“[A] party that has forfeited a right by failing to make a proper

objection may obtain relief for plain error; but a party that has waived a right [by

inviting the error] is not entitled to appellate relief.”). Precluding




                                           -8-
Mr. Ordonez-Mendoza from making an argument that he already has waived is

not a miscarriage of justice.

                                  Conclusion

      The motion to enforce the appeal waiver is GRANTED, and this appeal is

DISMISSED.


                                    ENTERED FOR THE COURT
                                    PER CURIAM




                                      -9-
