                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        July 3, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

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

              Plaintiff-Appellee,

     v.                                                  No. 06-4270
                                                 (D.C. No. 2:06-CR-472-PGC)
    DA RIO O RTIZ-GO NZA LEZ,                             (D . Utah.)

              Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before H E N RY, M U RPH Y, and M cCO NNELL, Circuit Judges.




          On August 22, 2006, defendant Dario Ortiz-Gonzalez pled guilty to one

count of illegal reentry in violation of 8 U.S.C. § 1326. Pursuant to a written plea

agreement between Ortiz-Gonzalez and the United States, Ortiz-Gonzalez

“voluntarily and expressly waive[d] [his] right to appeal any sentence imposed

upon [him], and the manner in which the sentence is determined, on any of 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 This order and judgment is not binding precedent, except under the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.
grounds set forth in Title 18, United States Code, Section 3742 or on any ground

whatever,” except he did not waive his right to appeal a sentence “above the

maximum penalty provided in the statutes of conviction,” which was stated to be

twenty years, “or an upward departure above the high end of the Guideline range

as determined by the Court to apply to [him] and the facts of [his] case.” Stmt.

by Def. in Advance of Plea, ¶ 10(a) at 3 (filed Aug. 22, 2006). At the change of

plea hearing, the district court specifically questioned Oritz-Gonzalez about his

understanding of the appeal waiver, and ultimately accepted the plea, finding that

it was knowing and voluntary. 1

      W hen the presentence report was prepared, defense counsel objected to the

calculation of Ortiz-Gonzalez’s criminal history score because she contended that

certain of his prior state court misdemeanor convictions had been obtained

without the benefit of counsel and that those uncounseled convictions should not

be counted in calculating his criminal history score. At the outset of the

sentencing hearing, the district court discussed the matter with the parties and

defense counsel noted that a case with similar facts was currently on appeal to the

Tenth Circuit, N o. 06-4032, United States v. Sanchez. The district court



1
       Other provisions in the plea agreement included that Ortiz-Gonzalez would
not file a motion for departure or variance from the guidelines, would agree to
reinstatement of a previous order of removal, and would not illegally reenter the
country, and that the United States, in turn, would recommend that he receive a
two-level reduction in the total offense level for participation in the fast-track
program.

                                         -2-
continued the hearing so that both parties could have an opportunity to brief the

issue; the court also requested from defense counsel copies of all the appellate

briefs in the Sanchez case.

      The sentencing hearing reconvened on October 18, 2006, at which time the

parties presented the court an addendum to the plea agreement. The parties also

added the following language to the addendum to reflect their agreement about

the outstanding sentencing issue: “the government will not enforce this appeal

waiver with respect to the uncounseled prior convictions if U.S. v. Sanchez, now

before the 10th Circuit is reversed.” Addendum to Stmt. of Def. in Advance of

Plea, ¶ 4(a) at 2 (filed Oct. 18, 2006). Both counsel indicated they were satisfied

with this additional language. The court then questioned Ortiz-Gonzalez about

his understanding of the change to the plea agreement.

      Q:     And you have already pled guilty. Do you understand that our
             purpose this morning is to add some additional provisions into
             the plea agreement between you and the government?

      A:     Yes, sir.

      Q:     Do you understand that the new agreement that you’re entering
             into indicates that you cannot appeal any sentence that I might
             impose and that you’re not going to file a motion for a
             departure or a variance from the guideline range. The only
             limitation is that you get the right to appeal what I’ll call the
             Sanchez issue. That is an issue up in front of the Tenth Circuit
             right now about how to add up criminal history points. But
             that is the only narrow appeal you’re going to be allowed to
             take and only if Sanchez comes out in favor of M r. Sanchez?

      A:     Yes, sir.

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      Q:     And then if you do that for the government, they’re going to
             do something for you. They’re going to recommend that you
             get tw o levels off your criminal history score, I’m sorry, two
             levels off the guideline calculation for going into a fast-track
             program. Do you understand that is what you’re going to get
             out of this arrangement?

      A:     Yes, sir.

      Q:     All right. W ould you like to sign the addendum to the plea
             agreement at this time?

Tr. of Sentencing Hr’g at 7 (Oct. 18, 2006). The district court then accepted the

addendum to the plea agreement, finding that Ortiz-Gonzalez entered it

know ingly and voluntarily with a full awareness of his rights.

      Following its acceptance of the addendum to the plea agreement, the

district court proceeded with sentencing. The court heard argument on the

allegedly uncounseled prior convictions and found that Ortiz-Gonzalez had not

presented enough evidence to overcome the presumption of regularity. See, e.g.,

United States v. Cruz-Alcala, 338 F.3d 1194, 1197 (10th Cir. 2003). The court

therefore determined that Ortiz-Gonzalez’s criminal history category was properly

calculated at a category V, and that his offense level should be 19, taking into

account the two-level reduction for his participation in the fast-track program.

That produced an advisory guideline range, the low end of which was 57 months.

The court expressed its intent to sentence Ortiz-Gonzalez to the low end of the

guideline range and both defense counsel and the United States concurred with

that assessment. The court then imposed a sentence of 57 months’ incarceration,

                                         -4-
followed by two years’ supervised release. The court waived the fine but

imposed a $100 special assessment and required as a special condition that

Ortiz-Gonzalez not reenter the United States illegally.

      Ortiz-Gonzalez filed a timely notice of appeal. He has raised two issues on

appeal: 1) that the district court erred in relying on several of his prior

misdemeanor convictions to calculate his criminal history category because those

convictions were obtained in violation of his right to counsel; and 2) that the

district court could not rely on any prior convictions to enhance his sentence

unless the prior convictions were charged in the indictment. On April 19, 2007, a

panel of this court issued a decision in United States v. Sanchez, No. 06-4032,

2007 W L 1153757, at *3-*5 (10th Cir. Apr. 19, 2007) (unpublished), affirming

M r. Sanchez’s sentence on the ground that he had not presented sufficient

evidence to overcome the presumption of regularity with respect to any of his

prior convictions. The United States then filed a M otion to Enforce Plea

Agreement in the present case pursuant to 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.” Id.




                                           -5-
             To prove that enforcement of an appellate waiver would result
      in a miscarriage of justice, a defendant must establish at least one of
      four circumstances: (1) reliance by the court on an impermissible
      factor such as race in the imposition of the sentence; (2) ineffective
      assistance of counsel in connection with the negotiation of the
      waiver; (3) the sentence exceeds the statutory maximum; or (4) the
      waiver is otherwise unlawful and seriously affects the fairness,
      integrity, or public reputation of judicial proceedings.

United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005).

      In its motion, the United States contends that Ortiz-Gonzalez knowingly

and voluntarily waived his right to appeal, that the issues raised by

Ortiz-Gonzalez are within the scope of that waiver, that this court’s affirmance of

the Sanchez case released the United States from its conditional promise not to

enforce the appeal waiver, and that enforcing the appeal waiver would not result

in a miscarriage of justice.

      In response, Ortiz-Gonzalez concedes that he entered the plea and appeal

waiver knowingly and voluntarily and that the issues raised on appeal fall within

the scope of the appeal waiver. He argues, however, that we should not enforce

the waiver because, unlike in Sanchez, the record here affirmatively shows that he

was denied the right to counsel in his prior convictions and allow ing those

convictions to be used against him in calculating his sentence would result in a

miscarriage of justice. He also contends that his appeal raises important

constitutional issues not yet resolved by the United States Supreme Court,

“namely the rights to notice, an indictment, and a jury trial when enhancing



                                         -6-
sentences for illegal reentry.” M em. in O pp’n to M ot. to Enforce Plea Agrmt.

at 1.

        Ortiz-Gonzalez’s arguments that enforcement of the appeal waiver will

result in a miscarriage of justice are misdirected because they focus on whether

his sentence was unlaw ful, not on whether the waiver was unlaw ful. As w e held

in Porter, “[t]he relevant question . . . is not whether [defendant’s] sentence is

unlawful . . . , but whether . . . his appeal waiver itself [is] unenforceable.”

405 F.3d at 1144. Ortiz-Gonzalez has not addressed any argument to the critical

issue of whether his appeal waiver itself was unlawful, much less shown that

enforcement of the waiver would seriously affect the fairness, integrity, or public

reputation of the judicial proceedings. The sentence the district court imposed

complied with the terms of the plea agreement and with the understanding of the

plea Ortiz-Gonzalez expressed at the change of plea hearing and again at the

hearing on the addendum to the plea agreement.

        The motion of the United States to enforce the plea agreement is

GRANTED and the appeal is DISM ISSED. The mandate shall issue forthwith.



                                         ENTERED FOR THE COURT
                                         PER CURIAM




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