                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   October 5, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 08-2279
 EMIGDIO TREJO-NOLASQUEZ,                       (D.C. No. CR-08-01692-WJ-1)
                                                        (D.N. Mex.)
           Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, McWILLIAMS, and MURPHY, Circuit Judges.



      Defendant Emigdio Trejo-Nolasquez pled guilty to illegally re-entering the

United States after having been deported, in violation of 8 U.S.C. §§ 1326(a) and

(b). The district court sentenced him to 37 months’ imprisonment, a sentence

which was at the bottom of his advisory Sentencing Guideline range. On appeal,

Trejo-Nolasquez argues that his sentence is substantively unreasonable because

the district court erred in applying the 18 U.S.C. § 3553(a) factors when it denied


      *
        This order and judgment is not binding precedent, except under the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.
his request for a downward variance. We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We agree with the government’s argument that Trejo-Nolasquez has

waived his right to appeal, and dismiss this appeal. 1

                                          I.

      Trejo-Nolasquez pled guilty without entering into a plea agreement with the

government. Prior to sentencing he did, however, sign a waiver of his appeal

rights and any post-conviction challenges to his sentence in exchange for the

government agreeing to an additional one-point reduction in his Sentencing

Guideline offense level. The waiver stated in its entirety:

             The Defendant, EMIDGDIO TREJO-NOLASQUEZ, is aware
      that federal law affords a defendant the right to appeal the sentence
      imposed. Acknowledging that right, the Defendant knowingly and
      voluntarily waives the right to appeal any sentence imposed that is
      within or below the Sentencing Guideline range that is applicable to
      the Defendant.
             In addition, the Defendant agrees to waive any other collateral
      attack to the Defendant’s conviction pursuant to 28 U.S.C. § 2255,
      except that the Defendant specifically reserves the right to raise
      ineffective assistance of counsel through the district court, if the
      Defendant elects to raise such a claim. No other issue is reserved.
             In exchange for this waiver of appeal rights and post-
      conviction challenges, the United States agrees that the total offense
      level shall be reduced an additional one level.
             I have read this waiver of appeal rights and have carefully
      reviewed every aspect of it with my attorney in my native language.
      I understand this waiver and I knowingly and voluntarily sign it in
      the presence of the Court.

      1
       Although it is preferred that the government file a motion to enforce an
appeal waiver before briefing commences, failure to file such a motion “does not
preclude a party from raising the issue in a merits brief.” See Tenth Cir. R.
27.2(A)(1)(d), (2), (3).

                                           2
ROA, Vol. 1, Doc. 21 at 1. This agreement resulted in the lowering of Trejo-

Nolasquez’s applicable Guideline range from 41 to 51 months to 37 to 46 months.

At sentencing, where a Spanish speaking interpreter was in attendance, Trejo-

Nolasquez’s attorney presented this written agreement to the district court. While

the district court did engage in a brief conversation with defense counsel

regarding the waiver, it never directly addressed Trejo-Nolasquez about it. Trejo-

Nolasquez contends on appeal that the district court’s failure to engage him in a

colloquy regarding the appeal waiver, coupled with the fact that the waiver and

the sentencing hearing were in English and not his native tongue, render his

waiver unenforceable.

                                         II.

      In determining whether to enforce a defendant’s waiver of appellate rights

this court must determine: (1) whether the disputed appeal falls within the scope

of the waiver of appellate rights; (2) whether the appellant 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).

      A. Scope of Waiver

      When considering an appeal brought subsequent to a defendant executing

an agreement to waive his appellate rights, this court must first determine whether

the appeal in question falls within the scope of the waiver. Hahn, 359 F.3d at

                                         3
1325. The waiver Trejo-Nolasquez signed explicitly stated that he waived his

right to appeal any sentence imposed within or below the applicable Sentencing

Guideline range. The district court sentenced Trejo-Nolasquez to a term within

his applicable Guideline range and thus his instant appeal, which challenges the

substantive reasonableness of the sentence imposed, is unquestionably within the

scope of the waiver that he signed.

      B. Knowing and Voluntary Waiver

      We next address whether the defendant’s waiver was knowing and

voluntary. Hahn, 359 F.3d at 1325. The appellant bears the burden of

demonstrating that he did not knowingly and voluntarily enter into the agreement.

Id. at 1329. In addressing this question, we examine whether the written waiver

contains language indicating that the defendant entered into the agreement

knowingly and voluntarily. Id. at 1325. As appeal waivers are usually obtained

as part of a plea agreement, we normally also consider the existence and adequacy

of a Federal Rule of Criminal Procedure 11 plea colloquy in making this

determination. Id. Here, however, Trejo-Nolasquez pled guilty without the

benefit of a plea agreement and did not present his appellate waiver to the district

court until sentencing. We are left then with only the written appellate waiver

and the sentencing transcript when determining whether Trejo-Nolasquez’s waiver

of his appellate rights was knowing and voluntary.

       The waiver signed by Trejo-Nolasquez explicitly states that he read and

                                          4
carefully reviewed every aspect of it with his attorney in his native language and

that he both knowingly and voluntarily signed it in the presence of the court and

knowingly and voluntarily waived his appellate rights. At sentencing, the district

court did not, however, question Trejo-Nolasquez directly regarding the waiver.

Instead, the court merely affirmed that defense counsel had reviewed it with him.

Trejo-Nolasquez relies on this absence of a colloquy and on the fact that the

sentencing proceedings and the waiver were both in English—a language in which

he is not fluent—to support his position that his waiver was not made knowingly

and voluntarily.

      Trejo-Nolasquez’s argument is unpersuasive. We have the unique

circumstance here that Trejo-Nolasquez entered his plea without the benefit of a

plea agreement and before the appellate waiver was executed. Given this

chronology of events, the Rule 11 provisions which require the court to engage

the defendant in a colloquy when taking a plea or accepting a plea agreement

were not triggered here when the appeal was presented to the court. Even given

that significant distinction, we find persuasive a case in which we addressed a

defendant’s argument that a language barrier resulted in an unknowing and

involuntary plea where Rule 11 did apply.

      In United States v. Ibarra-Coronel, 517 F.3d 1218, 1220-23 (10th Cir.

2008), the defendant was a Mexican citizen and spoke Spanish. 517 F.3d at 1223.

The district court conducted a Rule 11 plea colloquy in English, but used an

                                         5
interpreter. Id. at 1223. During the course of the colloquy, however, the

magistrate judge erroneously stated that the maximum penalty for the offense was

ten years when in fact that was the mandatory minimum penalty. Id. at 1220.

This was a clear violation of Rule 11(b)(1). Id. We noted, however, that the

defendant “failed to indicate during the district court proceedings—either at the

Rule 11 hearing, the sentencing hearing, or otherwise—that her inability to speak

or read English compromised her understanding of the plea agreement” and went

on to hold that “[b]ecause the parties had already entered into their Rule 11

agreement, the magistrate judge’s statement could not have created such

ambiguity as to undermine the ‘knowing and voluntariness’ of [the] Defendant’s

plea agreement.” Id. at 1223.

      Similarly, Trejo-Nolasquez had the benefit of a translator at both his plea

and sentencing hearings, and though there was a brief miscommunication between

him and the court at his plea hearing, he failed to indicate at any time during

either hearing that his inability to speak or read English compromised his ability

to understand the proceedings or his waiver agreement. Further, in stark contrast

to the sentencing court in Ibarra-Coronel, the district court in the instant case

made no misleading statements and in fact accurately noted that Trejo-Nolasquez

had formally waived his right to appeal his sentence. This, coupled with the

explicit language of the waiver which stated that it had been reviewed with Trejo-

Nolasquez in his native language and the district court’s confirmation that counsel

                                           6
had reviewed it with him prior to sentencing, leads us to conclude that Trejo-

Nolasquez has not satisfied his burden of demonstrating that his waiver was not

knowing and voluntary.

      C. No Miscarriage of Justice to Enforce Waiver

      Finally, in order for us to conclude that enforcing the waiver would not

result in a miscarriage of justice we must determine that none of the following

occurred: (1) that the district court relied on an impermissible factor such as race;

(2) that ineffective assistance of counsel in connection with the negotiation of the

waiver renders it invalid; (3) that the sentence exceeds the statutory maximum; or

(4) that the waiver is otherwise unlawful. Hahn, 359 F.3d at 1327. Three of these

possibilities can be summarily rejected. Trejo-Nolasquez concedes that his

sentence did not exceed the statutory maximum and he does not allege that the

district court relied upon any impermissible factors or that there was ineffective

assistance of counsel. Trejo-Nolasquez does, however, allege that because his

waiver was not knowing and voluntary, it is therefore unlawful. This argument is

unavailing because as discussed above, Trejo-Nolasquez has failed to satisfy his

burden in this regard. Thus, we conclude it is not a miscarriage of justice to

enforce Trejo-Nolasquez’s waiver of appellate rights.




                                          7
                                     III.

     Trejo-Nolasquez has executed an enforceable waiver of his appellate rights.

His appeal is DISMISSED.


                                            Entered for the Court



                                            Mary Beck Briscoe
                                            Circuit Judge




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