                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 20, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 09-6043
          v.                                           (W.D. Oklahoma)
 JESUS LOPEZ REYNA,                              (D.C. No. 07-CR-00319-F-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, SEYMOUR, and ANDERSON, Circuit Judges.



      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); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Jesus Lopez Reyna pled guilty, pursuant to a plea

agreement, to one count of conspiracy to possess with intent to distribute and to

distribute assorted controlled substances, including fifty grams or more of actual


      *
        This order and judgment is not binding precedent except under the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.
methamphetamine, five kilograms or more of a mixture or substance containing a

detectable amount of cocaine, and multi-pound quantities of marijuana, all in

violation of 21 U.S.C. § 846. Mr. Reyna was then sentenced to 300 months’

imprisonment, followed by five years of supervised release. He was also ordered

to pay a $100 special assessment and to forfeit certain assets. Despite the

existence of an appellate waiver in the plea agreement, Mr. Reyna attempts to

appeal his sentence. We enforce the appellate waiver and dismiss this appeal.



                                 BACKGROUND

      In November 2005, the Federal Bureau of Investigation (“FBI”) and the

Oklahoma City Police Department (“OCPD”) began a joint investigation into the

drug trafficking activities of the Walnut Gangster Crips gang in the Oklahoma

City area and elsewhere. The leaders of the Crips gang were identified as Arther

Draper and Marcus Gilkey, who ultimately cooperated with law enforcement in

the investigation. Law enforcement officers found out that Mr. Gilkey was

purchasing one to two kilograms of cocaine a week from a man named “Greg,”

later identified as Gregorio Reyna. One of Greg’s suppliers was his uncle,

appellant/defendant Mr. Reyna, who was allegedly supplying approximately four

kilograms of cocaine per week, from January 2005 until July 2006. Law officers

further determined that Mr. Reyna received cocaine, marijuana and




                                         -2-
methamphetamine at his automotive detail and body shop, JR Detail, in Oklahoma

City.

        In April 2007, the OCPD used a confidential source (“CS”) to begin

making buys of methamphetamine from Mr. Reyna at JR Detail. Most of these

transactions were set up by telephone calls between the CS and Mr. Reyna prior

to the buy. On several occasions, Mr. Reyna used other individuals, such as co-

conspirator Audencio Cardenas, to actually deliver the drugs to the CS and a

second confidential source who also began making methamphetamine buys from

Mr. Reyna in June 2007. A total of nine transactions took place between April 3,

2007, and August 30, 2007, involving sales of drugs by Mr. Reyna and his

associates to the two confidential sources. During this same time period,

Mr. Reyna had Mr. Cardenas pick up a pound of methamphetamine from another

associate, Alfredo Cruz.

        On October 3, 2007, physical surveillance at JR Detail saw an individual,

later identified as Felipe Reyna (a co-conspirator and Mr. Reyna’s brother) arrive

at the auto shop and meet with Mr. Reyna. As he left the shop, Felipe’s car was

stopped pursuant to a traffic stop and law officers found one kilogram of cocaine

in his car. Felipe cooperated with the investigation and told law enforcement

personnel that between February 2006 and October 2007, he had acquired

approximately twenty kilograms of cocaine from Mr. Reyna.




                                         -3-
      Following the traffic stop and seizure of cocaine from Felipe’s car, law

enforcement obtained a search warrant for JR Detail. In the Ford 250 truck

owned and driven by Mr. Reyna, officers found a loaded Glock, model 30, .45

caliber semiautomatic pistol and three cell phones. In the west part of the shop,

officers found two other pistols as well as various rounds of ammunition. They

also found smaller amounts of cocaine in the shop.

      Mr. Reyna was subsequently arrested. He stated that Anzel Betancourt was

importing cocaine from Mexico and providing it to Alfredo Cruz and Francisco

Trialla-Garcia, who in turn, passed it on to Mr. Reyna for distribution through

Felipe, Greg and Selestino Reyna at the JR Detail shop. Mr. Reyna apparently

indicated that between 2005 and July 2007, he distributed approximately 30

kilograms of cocaine that he had received from Mr. Betancourt.

      Based upon additional interviews and further investigation, several other

customers of Mr. Reyna’s were identified. These included James Hall, a named

co-conspirator who purchased a total of twenty pounds of marijuana from

Mr. Reyna, and John Reed, who purchased approximately 300 pounds of

marijuana from Mr. Reyna. 1 A number of individuals also provided information




      1
        Mr. Reed’s testimony at the evidentiary hearing suggested that he had
purchased between 136 and 480 pounds of marijuana from Mr. Reyna. The
district court ultimately used the minimum amount of 136 pounds in calculating
Mr. Reyna’s base offense level.

                                         -4-
as to Mr. Reyna’s central role in the conspiracy, including his direction of others

involved.

      As indicated, Mr. Reyna was arrested, charged and ultimately pled guilty to

a single count, pursuant to a plea agreement. The government specifically stated

in the written plea agreement that it was “aware of more than 250 grams of actual

methamphetamine, and between 15-50 kilograms of cocaine, . . . and multi-pound

quantities of marijuana, applicable to [Mr. Reyna].” Plea Agreement at 8,

Appellant’s App. Vol. 1 at 95. The government also stated its belief that

Mr. Reyna “should be assigned a leadership role in the offense, pursuant to

[United States Sentencing Commission, Guidelines Manual (“USSG”)] § 3B1.1.”

Id. at 9. Mr. Reyna reserved his right to contest drug quantities and the

assessment of his role in the offense.

      Both parties also specifically waived certain appellate rights.

Mr. Reyna agreed not to:

             Appeal or collaterally challenge his guilty plea, sentence and
      restitution imposed, and any other aspect of his conviction, including
      but not limited to any rulings on pretrial suppression motions or any
      other pretrial dispositions of motions and issues;

            Appeal, collaterally challenge, or move to modify . . . his
      sentence as imposed by the Court and the manner in which the
      sentence is determined, provided the sentence is within or below the
      advisory guideline range determined by the Court to apply to this
      case.




                                         -5-
Id. at 10-11. Mr. Reyna specifically did not waive “the right to appeal a sentence

above the advisory guideline range.” Id. at 11.

      In preparation for sentencing, the United States Probation Office prepared a

presentence report (“PSR”). The initial PSR indicated that Mr. Reyna’s total

offense level was 39, with a criminal history category of I, which yielded an

advisory Guideline range of 262-327 months.

      Mr. Reyna filed objections to the PSR, as well as a sentencing

memorandum. He argued that he should not be assigned a leader/organizer role,

and he objected to the total drug quantity. He further sought a downward

departure or a variance. The Probation Office addressed all of Mr. Reyna’s

objections, and revised its PSR twice. The final PSR calculated that a total of

74,104.66 kilograms of marijuana equivalent should be attributed to Mr. Reyna

for sentencing purposes. PSR ¶ 53, Appellant’s App. Vol. 1 at 132-33. The PSR

then determined Mr. Reyna’s base offense level should be 38. It recommended a

2-level increase for possession of dangerous weapons, a 4-level increase because

Mr. Reyna was the leader/organizer, and a 3-level decrease for acceptance of

responsibility, resulting in a total offense level of 41. With a criminal history

category of I, this yielded an advisory sentencing guideline range of 324 to 405

months.

      Both Mr. Reyna and the government called witnesses during the evidentiary

hearing on sentencing conducted on November 19 and 20, 2008. There was

                                          -6-
considerable testimony both as to the quantities of drugs involved and

Mr. Reyna’s role in the conspiracy. At the final hearing on sentencing, held on

February 20, 2009, the district court addressed the remaining objections by

Mr. Reyna. With respect to drug quantity, the court noted initially that Mr. Reyna

had stipulated to nine drug transactions, which established a marijuana equivalent

for sentencing purposes of 5,160.2 kilograms of marijuana. With respect to the

disputed quantities, the court stated:

      I have reviewed every page of that 302-page transcript [of the earlier
      evidentiary hearing]. My findings are based on a preponderance of
      the evidence. As will be seen, I have resolved ambiguities as to the
      frequencies and numbers of transactions and with respect to
      quantities in favor of the defendant.

             I’ve got no doubt that the defendant is chargeable with
      substantial quantities of drugs in excess of those that I have found
      from the evidence, but my findings are based on that portion of the
      evidence before me which I find to be reasonably reliable and
      reasonably unambiguous. Testimony that was unacceptably vague,
      either in terms of dates or frequency of transactions or in terms of
      quantity, has been disregarded entirely.

Tr. of Final Sent. Proceedings at 13, Appellant’s App. Vol. 1 at 512.

      The court went on to make detailed and specific factual findings regarding

the disputed quantities, and concluded that Mr. Reyna should be held accountable

for 12,338 kilograms of marijuana equivalent. The court also concluded that an

offense level increase was appropriate because of Mr. Reyna’s leadership role:

      It was emphatically [Mr. Reyna’s] criminal enterprise. He was the
      boss. He ran it. The others were subordinate to him. At a minimum,
      the following individuals participated in the operation of this

                                         -7-
      criminal drug distribution enterprise which was organized, led, and
      managed by the Defendant Jesus Reyna: Felipe Reyna, Audencio
      Cardenas, Gregorio Reyna, Selestino Reyna, Anzel Betancourt, and
      Wedo.
                                       ....

      [Mr. Reyna] was both a leader and a manager of the criminal activity
      that was based at his detail shop. . . . He commonly, if not in every
      case, set the price for the drugs that were distributed from his
      premises. This was specifically confirmed by Felipe Reyna, among
      others, and reliably indicates the role of Jesus Reyna as the organizer
      and leader of this criminal activity. If there was a question as to the
      weight of the drugs sold in any instance, that was resolved by Jesus
      Reyna. On a number of occasions a sale transaction would be
      arranged on the telephone with Jesus Reyna, but someone else would
      actually make the delivery.

             Typically, when another individual such as Audencio Cardenas
      or Felipe Reyna would make a delivery, they would return to the
      shop and dutifully turn in the proceeds of the sale to Jesus Reyna.
      This procedure was also confirmed by Felipe Reyna. These men
      were not mere customers of Jesus Reyna, they were members of his
      organization.

Id. at 29-31.

      The court accordingly concluded that the total offense level should be 39,

with a criminal history category of I, resulting in an advisory Guideline range of

262 to 327 months. The court also explicitly acknowledged Mr. Reyna’s request

for a downward departure or variance, acknowledged its authority to make such a

departure, but concluded that “there is nothing in the Section 3553 factors which

leads me to a conclusion . . . that a sentence below the bottom of the guideline

range determined under the advisory guidelines is warranted.” Id. at 33.




                                         -8-
       The district court then sentenced Mr. Reyna to 300 months’ imprisonment,

stating,

       That sentence is sufficient but not greater than necessary to fulfill the
       objectives of sentencing under the Sentencing Reform Act. In
       reaching that conclusion, I do take into account all the factors
       mandated by [18 U.S.C. § 3553], which I will not mention at length
       at this time.

              Mr. Reyna, this sentence of 25 years is the sentence that you
       clearly deserve. You distributed an astonishing quantity of hard
       drugs in your years as a drug dealer. In so doing, you have been
       instrumental in the devastation of countless lives and families. And
       as I have said, I’ve seen no indication from you today or before today
       that you even thought about, much less cared about, the lives that
       you were devastating as a major dealer of hard drugs in this
       community. You deserve every day of the 25-year sentence that the
       Court imposes upon you without parole.

Id. at 38.

       Despite the existence of the appellate waiver in the plea agreement,

Mr. Reyna endeavors to appeal his sentence, arguing (1) his waiver of appellate

rights does not encompass claims alleging a violation of United States v. Booker,

543 U.S. 220 (2005); (2) Mr. Reyna was sentenced in violation of Booker; and (3)

in refusing to depart downward, the district court committed both constitutional

and non-constitutional Booker error. We enforce the appellate waiver in this case

and dismiss this appeal without reaching its merits.




                                          -9-
                                   DISCUSSION

      “A defendant may not appeal [his] sentence if [he] has waived [his]

appellate rights in an enforceable plea agreement.” United States v. Smith, 500

F.3d 1206, 1210 (10 th Cir. 2007). However, “[a] defendant’s waiver of the right

to appeal may itself be waived by the government.” United States v. Contreras-

Ramos, 457 F.3d 1144, 1145 (10 th Cir. 2006). “The preferred procedure for

invocation of an appeal waiver is for the government to file a motion under Tenth

Circuit Rule 27.2(A)(1), or to argue the waiver issue in its brief.” Id. In this

case, the government has averred that it failed to file a motion to enforce the plea

agreement, “[d]ue to an error on the part of counsel.” Br. of Plaintiff-Appellee at

13, n13. But, the government argues the validity of the waiver in its brief, so we

may proceed to consider whether to enforce the waiver.

      “This Court employs a three-pronged analysis to determine whether to

enforce a waiver of appellate rights.” Smith, 500 F.3d at 1210 (citing United

States v. Hahn, 359 F.3d 1315 (10 th Cir. 2004) (en banc)). We examine

“(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.” Hahn, 359 F.3d at 1325. The plea agreement provided that Mr. Reyna

waived the right to “[a]ppeal, collaterally challenge, . . . his sentence as imposed

by the Court and the manner in which the sentence is determined, provided the

                                         -10-
sentence is within or below the advisory guideline range determined by the Court

to apply.” Plea Agreement at 11, Appellant’s App. Vol. 1 at 97. This waiver

encompasses all appellate challenges to the sentence and the manner in which it is

calculated, so long as the sentence is “within or below” the advisory Guideline

range. The district court sentenced Mr. Reyna within the advisory Guideline

range it calculated. Thus, Mr. Reyna’s challenge to the manner in which the

district court calculated his sentence (relying on facts to calculate drug quantities

and his leadership role, allegedly in contravention of Booker) is precisely within

the scope of the waiver.

      Moreover, Mr. Reyna’s argument that he did not waive the right to have the

jury decide the facts supporting his sentence is meritless. “A sentencing court

may find facts for sentencing purposes by a preponderance of the evidence.”

Smith, 500 F.3d at 1210. And, Mr. Reyna was told as much at the change of plea

proceedings:

      THE COURT: Now, do you understand that as a result of your guilty
      plea, the facts that may have an effect on the severity of your
      sentence will be determined by me and not by a jury?

      THE DEFENDANT: Yes, sir.

      THE COURT: By pleading guilty, you’re giving up the right to have
      a jury determine one way or the other the facts which if proven to a
      jury beyond a reasonable doubt might have an effect on your
      sentence. Do you understand that?

      THE DEFENDANT: Yes, sir.


                                         -11-
Tr. of Plea Proceedings at 12-13, Appellant’s App. Vol. 1 at 179-80. Mr. Reyna’s

arguments fall squarely within the scope of the appellate waiver.

      We now consider whether Mr. Reyna’s waiver was knowing and voluntary.

“The defendant bears the burden to demonstrate that [his] waiver was not

knowing and voluntary.” Smith, 500 F.3d at 1210. Under Hahn, we look

primarily at two factors to determine the voluntariness of a particular defendant’s

waiver. We “examine whether the language of the plea agreement states that the

defendant entered the plea agreement knowingly and voluntarily.” Hahn, 359

F.3d at 1324. There can be no dispute that this condition has been met. We also

“look for an adequate Federal Rule of Criminal Procedure 11 colloquy.” Id. at

1325. The district court questioned Mr. Reyna extensively at the plea hearing,

and clearly established that Mr. Reyna was competent to enter into the plea and

understood its terms, including the waiver provisions.

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

miscarriage of justice. “A miscarriage of justice occurs ‘[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.’” Smith, 500 F.3d at 1212 (quoting

Hahn, 359 F.3d at 1327). There is no miscarriage of justice here.




                                        -12-
      In sum, because Mr. Reyna knowingly and voluntarily entered into the plea

agreement containing a waiver of appellate rights, because the alleged errors are

within the scope of the waiver, and because enforcement of the waiver would not

result in a miscarriage of justice, we conclude that his plea agreement, and its

appellate waiver, is enforceable. We therefore enforce the waiver and dismiss

this appeal without further consideration.



                                  CONCLUSION

      For the foregoing reasons, we DISMISS this appeal.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                         -13-
