                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES CO URT O F APPEALS
                                                                  October 23, 2007
                                                     Elisabeth A. Shumaker
                          FO R TH E TENTH CIRCUIT        Clerk of Court



    U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,

    v.                                                  No. 07-3218
                                                (D.C. No. 07-CR-10051-W EB)
    ULY SSES                                              (D . Kan.)
    HERNA ND EZ!M AR TINEZ,

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before M U RPH Y, EBEL, and M cCO NNELL, Circuit Judges.




         Defendant Ulysses Hernandez-M artinez pled guilty to one count of misuse

of a Social Security number and one count of aggravated identity theft. He was

sentenced to thirty-six months in prison. Although his plea agreement contained

a waiver of his appeal rights, M r. Hernandez-M artinez subsequently filed an

appeal challenging his sentence. The government has moved 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 This order and judgment is not binding precedent, except under the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).

      Under Hahn, 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.” 359 F.3d at 1325.

M r. Hernandez-M artinez concedes that his appeal falls within the scope of the

waiver of his appellate rights and he does not argue that enforcing the waiver

would result in a miscarriage of justice. He asserts, however, that he did not

know ingly and voluntarily waive his appellate rights.

      In determining whether a waiver of appellate rights is knowing and

voluntary, we look primarily at two factors: (1) “whether the language of the plea

agreement states that the defendant entered the agreement knowingly and

voluntarily” and (2) whether there is “an adequate Federal Rule of Criminal

Procedure 11 colloquy.” Id.

      There is no dispute regarding the language of the plea agreement.

M r. Hernandez-M artinez’s signed plea agreement states that he “knowingly and

voluntarily waives any right to appeal or collaterally attack any matter in

connection with this prosecution, conviction and sentence.” M ot., Att. A at 5.

Further, the plea agreement states that




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       the defendant acknowledges that he has had the plea agreement read
       to him, understands it and agrees it is true and accurate and not the
       result of any threats, duress or coercion . . . . The defendant
       acknowledges that the defendant is entering into this agreement and
       is pleading guilty because the defendant is guilty and is doing so
       freely and voluntarily.

Id. at 7.

       As to the second factor, M r. Hernandez-M artinez argues that the district

court failed to give a proper Rule 11 plea colloquy. The relevant portion of Rule

11 states that

       the court must address the defendant personally in open court.
       During this address, the court must inform the defendant of, and
       determine that the defendant understands, the following:
       ...
       the terms of any plea-agreement provision waiving the right to appeal
       or to collaterally attack the sentence.

Fed. R. Crim. P. 11(b)(1)(N). During the plea hearing, the district court had

defense counsel summarize the plea agreement, see M ot., Att. B at 18-22, but the

district court did not review the appeal waiver provision with

M r. H ernandez-M artinez or ask him whether he understood the waiver.

       In United States v. Edgar, 348 F.3d 867, 871 (10th Cir. 2003), we held

“that it is always error for a district court to fail to discuss an appellate waiver

provision during a Rule 11 colloquy, although not always reversible error.”

Because M r. Hernandez-M artinez failed to raise this Rule 11 issue in the district

court, “we review any alleged error under the plain error standard of Fed. R.




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Crim. P. 52(b).” Id. Under the plain error standard, there must be an actual error

that is plain or obvious and affects substantial rights. Id.

      As in Edgar, the district court’s failure to discuss

M r. Hernandez-M artinez’s waiver of appellate rights was actual error that was

plain or obvious. See id. at 871-72. The question then is whether the error

affected substantial rights. “An error affects substantial rights where the error

was prejudicial, that is, if it affected the outcom e of the district court

proceedings.” Id. at 872 (quotation omitted). In the context of appellate waivers,

a defendant shows prejudice by presenting evidence that the waiver was not

knowing and voluntary. Id. at 872.

      M r. Hernandez-M artinez contends that his waiver was not knowing and

voluntary because (1) he explained at his change of plea hearing that he is not a

native English speaker and only speaks or understands a “‘bit of English,’” Resp.

at 5 (quoting M ot., Att. B at 5); (2) he has no formal education, id.; and (3) the

record shows that he did not understand the appeal waiver because he stated

during the sentencing hearing that he was going to keep fighting his case after

sentencing, id. These contentions are inconsistent with

M r. Hernandez-M artinez’s signed plea agreement and his testimony at the plea

hearing.

      As set forth above, M r. Hernandez-M artinez signed his plea agreement,

which included the appeal waiver and his acknowledgement that he “had the plea

                                            -4-
agreement read to him, understands it and agrees it is true and accurate and not

the result of any threats, duress or coercion.” M ot., Att. A at 7. At the plea

hearing, an interpreter was available for him to use. See id., Att. B. at 1-2. After

he told the court that he could only speak a little bit of English, the court asked:

“W ell, do you understand what I’m asking you now?” and he said “yes.” Id. at 5.

He did not ask to use the interpreter during the hearing and he at no point

informed the court that he did not understand what was going on during the

hearing. At the end of the plea hearing, after the plea agreement had been

summarized in open court, the district court and M r. Hernandez-M artinez had the

following exchange:

      THE COURT: Now, you listen to me carefully. Are you offering
      your plea of guilty with a full understanding of all the matters set
      forth in the information in this petition, in your plea agreement, and
      in the certificate of your attorney?

      THE DEFENDANT: Yes.

      THE COURT: Is there anything about it that you don’t understand?

      THE DEFENDANT: No.

      THE COURT: Then I ask you again, do you swear that you read,
      understood, discussed with your attorney every part of the petition to
      plead guilty, your plea agreement, and your answer to those
      documents, and your answers to me now are true and correct; is that
      right?

      THE DEFENDANT: That is correct.




                                          -5-
Id., Att. B. at 26. Finally, M r. Hernandez-M artinez’s statement during his

sentencing hearing that he was “going to continue fighting this, just not in this

court,” was apparently made in reference to his alleged plans to go to the United

Nations so that “the whole country [can] know what everyone’s doing here.” Id.,

Att. C at 6-7. These remarks do not affirmatively show that he did not knowingly

and voluntarily enter into his appeal waiver.

      Because M r. Hernandez-M artinez failed to present evidence from the

record to dispute his own written and verbal assertions, we conclude that the

waiver w as knowing and voluntary. See Edgar, 348 F.3d at 873. Accordingly,

the district court’s failure to discuss the appeal waiver during the plea colloquy

did not affect M r. Hernandez-M artinez’s substantial rights, and the plain error

standard has not been met in this case.

      The government’s motion to enforce the plea agreement is GRANTED and

the appeal is DISM ISSED.


                                          ENTERED FOR THE COURT
                                          PER CURIAM




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