                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        August 22, 2006
                             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. 06-3174
                                                  (D.C. No. 05-CR-20077-JW L)
    JU A N CA RLO S                                         (D . Kan.)
    QU INTA NA -NA VA RETTE,

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and TYM KOVICH, Circuit Judges.




         Defendant pled guilty to conspiring to distribute or possess with intent to

distribute marijuana in violation of 21 U.S.C. § 846. His 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.”

Plea Agreement at 5 (dated and filed Jan. 5, 2006). M ore specifically, it recites


*
      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 This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
that he “knowingly waives any right to appeal a sentence imposed which is w ithin

the guideline range determined appropriate by the court,” reserving the right to

appeal only “to the extent, if any, the court departs upwards from the applicable

sentencing guideline range determined by the court.” Id. at 5, 6. The agreement

recites defendant’s understanding that he faced a sentence of “not less that ten

(10) years nor more than Life imprisonment.” Id. at 1. The district court imposed

a ten-year sentence and, notwithstanding the appeal waiver in his plea agreement,

defendant appealed. The government has moved to enforce the appeal waiver

under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc). For

reasons explained below, we grant the motion and dismiss the appeal.

      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. at 1325. The miscarriage-of-justice

prong requires the defendant 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 unlaw ful.

Id. at 1327. The government’s motion addresses these considerations, explaining

why none of them undermines defendant’s appeal waiver. Upon review of the

pertinent plea and sentencing materials, we agree.

                                         -2-
      In response to the government’s motion, defendant’s counsel “concede[d]

that, in light of the Defendant’s agreement to waive his right to appeal in the plea

agreement, the appeal is wholly frivolous,” and moved to w ithdraw under Anders

v. California, 386 U.S. 738 (1967). Response to Appellee’s M otion to Enforce

Appeal W aiver and M otion for Leave to W ithdraw as Counsel at 1. Counsel

stated that “the disputed appeal falls within the scope of the waiver of appellate

rights”; that “the defendant know ingly and voluntarily waived his appellate rights,

as is evidenced by the transcript of the Defendant’s plea hearing”; and that

counsel could “find[] nothing to support the argument that enforcing Defendant’s

plea waiver would result in a miscarriage of justice.” Id. at 1-2.

      This court provided defendant with copies of the government’s motion and

counsel’s response and gave him the opportunity to argue why this appeal should

be heard despite his appeal waiver. In his two responses, he has asserted several

arguments, none of which, however, undercuts or circumvents the waiver.

      First of all, he flatly denies that he committed the offense, insisting that a

co-defendant’s inculpatory testimony was false and that other co-defendants

would support his case. This claim falls squarely within defendant’s broad

waiver of the right to appeal “any matter in connection with this . . . conviction.”

Plea Agreement at 5. Indeed, a guilty plea in itself, which conclusively admits

guilt and waives all nonjurisdictional objections, bars appellate review of claims

that the offense has not been established. See, e.g., United States v. Flynn,

                                          -3-
309 F.3d 736, 739 (10th Cir. 2002); United States v. Dwyer, 245 F.3d 1168, 1170

(10th Cir. 2001).

      Second, in a related vein, defendant complains of an inconsistency in the

factual recitation of the offense as stated in the plea agreement and at the plea

hearing. The agreement recites that “the parties agree the facts constituting the

offense to which the defendant is pleading guilty are as follows:”

      During the period between August 2003, the exact date being
      unknown and M arch 5, 2005, the defendant Juan
      Q uintana-Navarette did knowingly and intentionally combine,
      conspire, confederate and agree together with Jaime Carrasco, Arturo
      Ramirez-Caudillo, Laura Terrazas, Ruben Dominguez and Victor
      Dominguez, Victor Garcia B ojorquez, and others unknown to
      distribute and possess with intent to distribute in excess of 1000
      kilograms of marijuana.

      ....

      Patricia Richardson testified that between November 2003 and late
      October or early November 2004, she transported and delivered
      10-15 various size loads of marijuana to the defendant Juan
      Q uintana-Navarette. Four or five of these loads were 200 pounds
      each, five or six of these loads were 400 pounds each, two loads were
      600 pounds each, and one load was 2,200 pounds. M s. Richardson
      testified that Carlo Carrasco was one source of supply of the
      marijuana she delivered to Juan Q uintana[-]Navarette.

      . . . . Patricia Richardson also testified that she would pick up
      marijuana from [Chamberino, New M exico] to deliver to Juan
      Q uintana-Navarette.


Plea A greement at 2 (emphasis added). W hen government counsel recited these

facts verbatim at the plea hearing, the first, third, and fourth references to



                                          -4-
defendant were made but for some reason the second (regarding the particular

deliveries of marijuana) w as omitted and co-defendant Arturo Ramirez-Caudillo’s

name was recited instead. See Transcript of January 5, 2006, Plea Proceeding

(Plea Tr.) at 21-22. This alteration, whether inadvertent or deliberate, 1 does not

negate or avoid defendant’s appeal waiver. Defendant’s admissions at the plea

hearing, see supra note 1, clearly supported his plea (and hence his associated

appeal waiver) in any event.

      Defendant also notes that under his attorney’s signature the plea agreement

erroneously states “Attorney for Defendant Arturo Ramirez.” Plea Agreement

at 8. This obvious clerical error (the docket clearly shows that the signing

attorney represented defendant and that another attorney represented co-defendant

Arturo Ramirez-Caudillo) has no material significance here. Both defendant and

his attorney signed the plea agreement, id. (indeed it appears they did so together

in open court, see Plea Tr. at 21), which was fully considered and accepted by the

court at the plea hearing, see id. at 13-27.




1
       From all indications, the change was inadvertent. Shortly after the above
facts w ere recited, defendant’s counsel stated that defendant was “willing to
admit this afternoon, as to [the paragraph reciting the particular deliveries], that
M s. Patricia Richardson delivered the marijuana to him on various occasions and
that is a fairly accurate account of the deliveries that she made to him.” Plea Tr.
at 23 (emphasis added) (also stipulating that “the amounts involved exceeded
1,000 kilograms”). Defendant himself then admitted that he conspired with
M s. Richardson and that he received “the quantities of marijuana . . . that are set
out in the [same] paragraph.” Id. at 25.

                                          -5-
      Next, defendant complains in quite general terms of counsel’s performance,

stating that he “felt that [his] lawyer [was not] representing [him] properly”

during the first two days of trial, 2 which led him to conclude that “it would be

easier for [him] to plea[d] guilty at that time and appeal[] it later.” July 16, 2006,

response of defendant at 2; see also July 31, 2006, response of defendant at 2.

W hile Hahn noted that ineffective assistance was one potential basis for avoiding

an appeal w aiver, Hahn was specifically referring to “ineffective assistance of

counsel in connection with the negotiation of the appeal waiver render[ing] the

waiver invalid.” 359 F.3d at 1327 (emphasis added and quotation omitted). Hahn

did not hold that other claims of (pre-plea) ineffective assistance would have any

effect on an appeal waiver.

      Not only is defendant’s objection about trial counsel’s performance

insufficient to open the Hahn door for this appeal in general, the objection would

itself appear to be encompassed within his broad waiver of “any matter in

connection with this prosecution, conviction and sentence.” Plea Agreement at 5.

Indeed, because a guilty plea waives all nonjurisdictional errors, including

constitutional violations earlier in the proceedings, United States v. Salazar,

323 F.3d 852, 856 (10th Cir. 2003), the objection may well have been waived by



2
       Defendant broadly suspects that his attorney “w as on the U .S. Attorney’s
side,” but he gives little in the way of specifics. July 16, 2006, response of
defendant at 2. W e are told only that “every time [he] asked [his] lawyer for any
information [his lawyer] always denied it.” Id.

                                         -6-
the plea itself. See United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000)

(noting voluntary plea waives all claims of ineffective assistance except those

rendering plea invalid); cf. United States v. Porter, 405 F.3d 1136, 1141

(10th Cir.) (noting guilty plea would waive denial of defendant’s motion for

substitute counsel made prior to entry of plea), cert. denied, 126 S. Ct. 550

(2005). In any event, to the extent the objection itself survives both potential

waivers, it would not be a basis for appeal here but, rather, for a possible motion

for collateral relief under 28 U.S.C. § 2255. United States v. Delacruz-Soto, 414

F.3d 1158, 1168 (10th Cir. 2005).

      Finally, defendant objects, without elaboration, that “[his] sentence w asn’t

right.” July 31, 2006, response of defendant at 2; see also July 16, 2006,

response of defendant at 2 (stating “120 months is a long time in prison for

something [he] never d[id]”). Because defendant’s sentence did not “depart[]

upwards from the applicable sentencing guideline range determined by the court,”

Plea Agreement at 6, this objection also plainly falls within the scope of his

appeal w aiver.

      Having review ed the pertinent materials, we find nothing to except this

case from the consequences of the broad appeal waiver included in defendant’s

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




                                         -7-
and the appeal is DISM ISSED. Counsel’s motion for leave to withdraw is

GRANTED. The mandate shall issue forthwith.



                                    ENTERED FOR THE COURT

                                    PER CURIAM




                                      -8-
