                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 18, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT




UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
      v.                                                 No. 08-2250 
                                               (D.C. NO. 1:08-CR-00159-MCA-1)
OSCAR CRUZ-LOPEZ,                                          (D.N.M.)

             Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before HENRY, Chief Judge, EBEL, and GORSUCH, Circuit Judges.



      Oscar Cruz-Lopez, who reentered the United States illegally, seeks to undo

the benefits he has received under a “Fast Track” plea agreement, pointing to a

clerical error in the original information. The government promptly issued a

superceding information correcting the error, and Mr. Cruz-Lopez proffered no

objection to this information, nor did he object to his within the advisory

guidelines sentence. On appeal, he maintains that he never pleaded guilty to the



      *
        This order and judgment is not binding precedent except under the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.
superceding information, and in the alternative, that the plea agreement’s waiver

of his right to appeal is invalid. Because Mr. Cruz-Lopez’s plea bargain is valid

and he waived his right to appeal, we must enforce the plea agreement and dismiss

the appeal.

                          I. FACTUAL BACKGROUND

      Oscar Cruz-Lopez, born in Mexico, came to the United States when he was

seven-years old and spent nearly all his adult life in southern New Mexico. At a

young age, he developed an addiction to drugs and alcohol. This history of drug

and alcohol abuse led to a series of convictions including driving under the

influence of alcohol and other offenses.

      In September 1998, a state court jury in Las Cruces, New Mexico, convicted

Mr. Cruz-Lopez of the second-degree felony of trafficking in cocaine. The court

sentenced him to a prison term of nine years; the court suspended four years and

six months of that sentence. In March 2004, following his release from prison, the

Bureau of Immigration and Customs Enforcement took him into custody and

deported him to the Republic of Mexico.

      In 2005, Mr. Cruz-Lopez illegally reentered the United States. In June

2006, a state court jury in Las Cruces, New Mexico, convicted Mr. Cruz-Lopez of

a fourth-degree felony (battery on a police officer) as well as six misdemeanor

charges. He was sentenced to a prison term of three years and six months. In

November 2007, Mr. Cruz-Lopez was released to Bureau of Immigration and

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Customs Enforcement custody.



      While in Bureau of Immigration and Customs Enforcement custody, the

United States government filed a criminal complaint against Mr. Cruz-Lopez for

illegal reentry after deportation, in violation of 8 U.S.C. § 1326(b)(1) and (b)(2).

Mr. Cruz-Lopez waived his right to a preliminary hearing and agreed to continue

the time before his case could be presented to a grand jury. On January 30, 2008,

Mr. Cruz-Lopez entered a Fast Track plea agreement before a magistrate judge to

the Information that alleged that he illegally reentered the United States on or

about November 30, 2007.

      The Fast Track Plea Agreement, entered pursuant to Rule 11(c)(11)(C) of

the Federal Rules of Criminal Procedure, stated that the government agreed to a

reduction in Mr. Cruz-Lopez’s recommended offense level in return for his

agreeing “not to seek any further reduction, departure, deviation, or variance in

the Final Adjusted Offense Level or the Criminal History Category as determined

by the Court.” Rec. vol. 1, doc. 17, at 8. In exchange for the reduced offense

level, the agreement also stated that “[t]he Defendant knowingly waives the right

to appeal any sentence within the applicable sentencing guideline range and

imposed in conformity with this plea agreement.” Id. at 9.

      During the plea colloquy, the magistrate judge questioned Mr. Cruz-Lopez

to ensure that he understood that he was entering a plea of guilty and he was doing

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so voluntarily. The magistrate judge advised the defendant “you are giving up

your right to appeal the sentence, so long as the sentence is within the guideline

range, and significantly, you are giving up your right later on to challenge, in any

other proceeding, your conviction and sentence for any reason, unless if [defense

counsel] was constitutionally an ineffective attorney.” Id. vol. 3, doc. 55, at

39–40. The court then asked the defendant: “Do you understand you are giving

up these rights?” Id. at 40. The defendant responded: “Yes, your honor.” Id.

Prior to sentencing, Mr. Cruz-Lopez discovered that officials from the Bureau of

Immigration and Customs Enforcement actually found that he reentered the United

States on August 14, 2005, rather than November 30, 2007, as the information

alleged. Mr. Cruz-Lopez sought to withdraw his plea because the change in entry

date would change the calculations for his sentence. Defense counsel maintained

that at least two of the calculations used to determine the sentence would change:

“One, that he was under judicial sentence at the time that he reentered the country,

and that he was on a term of probation, and those are one and two points

respectively that would change.” Id. vol. 3, doc. 34, at 6.

      The motion to withdraw requested that, “[u]nless the prosecuting attorney

files a superceding criminal information alleging the correct date of offense,” the

court should “allow defendant to withdraw his plea and proceed to trial to contest

the date of offense.” Id. vol. 1, doc. 26, at 81 (emphasis added). The government

did not oppose the motion. At a May 21, 2008 hearing, the government explained

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that it planned to file a superceding indictment to correct the error. The

government opposed allowing Mr. Cruz-Lopez to file objections or sentencing

memoranda because fast track plea agreements do not allow for them. The court

rejected this reasoning, and stated it would defer any action on the motion to

withdraw the plea until the probation office submitted an addendum to the

Presentencing Report (PSR). On May 22, 2008, the government filed a

Superseding Information that corrected the date of offense—alleging that Mr.

Cruz-Lopez was found in the United States on August 14, 2005.

      On September 18, 2008, the court held a presentencing hearing. The court

again deferred any ruling on the motion to withdraw the plea, and asked the parties

to submit sentencing memoranda addressing any miscalculations stemming from

the corrected date. The court rescheduled the sentencing “for as soon as possible

after October 6” and stated it would then review the addendum to the

presentencing report and its new calculations. Id. vol. 3, doc. 49, at 15. Defense

counsel did not challenge the court’s proposal.

      The revised PSR recommended a “total offense level” of 21 (with a

corresponding guideline range of 70 to 87 months), a Rule 11(c)(1)(C) level of 19

(with a corresponding guideline range of 57 to 71 months), and a criminal history

category of V. The offense level calculation included a 16-level increase for Mr.

Cruz-Lopez’s earlier deportation following his conviction for drug trafficking.

The PSR also stated that if Mr. Cruz-Lopez had been convicted at trial of the

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offense, the guideline calculations would be based on an offense level of 24

combined with a criminal history of V, resulting in a guideline imprisonment

range of 92 to 115 months.

      At the October 7, 2008 Rule 11 sentencing hearing, the district court sought

to hear “any arguments” and “any objections” about the presentencing report. Id.

at 23. Defense counsel inquired as to the propriety of the 16-level increase, and

agreed that “the law appears to support it.” Id. vol. 3, doc. 52, at 25. The court

asked whether defense counsel had “any other objections or other matters” he

would like to raise, and defense counsel made a request regarding having Mr.

Cruz-Lopez housed in a nearby correctional facility, and asked that the court

recommend his client partake in the “500-hour” substance abuse program. Id.

The court next gave Mr. Cruz-Lopez a chance to speak on his own behalf, and he

stated that he has already served two years and would like to leave the United

States. The court, referencing the plea agreement, calculated the offense level to

be 18, and determined that the PSR’s recommended criminal history of V

overrepresented Mr. Cruz-Lopez criminal history. The court applied a criminal

history category of IV to its calculation. The court calculated the advisory

guideline range to be 41 to 51 months, and imposed a 41 month sentence of

imprisonment. As requested by defense counsel, the court also recommended Mr.

Cruz-Lopez serve his sentence in La Tuna, Texas, and recommended that he

participate in the Bureau of Prisons’ 500-hour drug and alcohol treatment

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program. When asked, defense counsel replied that he did not object to this

sentence. The court finally noted that Mr. Cruz-Lopez had waived his right to

appeal the sentence imposed under 18 U.S.C. § 3742(a).

      On appeal, Mr. Cruz-Lopez raises three arguments: (1) the appellate waiver

is invalid; (2) the sentence imposed by the district court is unreasonable; and (3)

the district court failed to credit the time Mr. Cruz-Lopez spent in state custody

after he was found in the United States. Because we find the appellate waiver

dispositive, we do not reach the second two issues. See United States v. Smith,

500 F.3d 1206, 1210 (10th Cir. 2007) (the appellate waiver “encompasses all

appellate challenges to the sentence other than those falling within the explicit

exception for challenges to upward departures. . . . [and] challenges to the District

Court’s application of the offense-level adjustments clearly fall within the scope

of the waiver”).

                                  II. DISCUSSION

      A.     Mr. Cruz-Lopez pleaded guilty and entered a waiver of his right
             to appeal.

      As a threshold matter, it is necessary to determine whether Mr. Cruz-Lopez

pleaded guilty and waived his right to appeal. Mr. Cruz-Lopez admits that the

language of the “Fast Track” plea agreement clearly constitutes a waiver of his

right to appeal. He argues, however, that “the appellate waiver contained in the

plea agreement is invalid because it was involuntary and was subsequently


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obviated by the filing of a Superseding Information which never resulted in the

ensuing entry of a knowing and voluntary plea.” Aplt’s Br. at 11–12. He also

claims that there was no “meeting of the minds” with regards to a plea of the

Superseding Indictment. Id. at 13. Finally, he argues that it would be a

miscarriage of justice to enforce the plea agreement against him because he did

not enter into the agreement. All of these are different articulations of the same

argument: that Mr. Cruz-Lopez never entered into a guilty plea agreement with

the government with respect to the superceding indictment.

      Mr. Cruz-Lopez misapprehends the function of a superceding indictment.

“The term ‘superseding indictment’ refers to a second indictment issued in the

absence of a dismissal of the first.” United States v. Rojas-Contreras, 474 U.S.

231, 237 (1985) (Blackmun, J., concurring). The Tenth Circuit in United States v.

Bowen, 946 F.2d 734, 736 (10th Cir. 1991) stated: “[w]e have found no authority

which supports the proposition that a superceding indictment zaps an earlier

indictment to the end that the earlier indictment somehow vanishes into thin air.”

Numerous circuits have held in similar contexts that filing a superceding

indictment does not make the earlier indictment void and that the two can co-exist.

United States v. Walker, 363 F.3d 711, 715 (8th Cir. 2004) (“Other circuits have

clearly stated that a superceding indictment does not in effect dismiss the original

indictment and that both indictments can co-exist.” (citing United States v.

Vavlitis, 9 F.3d 206, 209 (1st Cir. 1993) (“It is clear that the grand jury’s return of

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a superceding indictment does not void the original indictment.”); Bowen, 946

F.2d at 736; United States v. Friedman, 649 F.2d 199, 202 (3d Cir. 1981) (holding

that the grand jury’s return of a superceding indictment did not “void” original

indictment))).

      Upon review of the record, Mr. Cruz-Lopez’s description of the events

clearly fails. The defendant is correct that he moved to withdraw the plea of guilty

but this was for the limited purpose of obtaining the very superceding information

that the government filed. The court did not rule on the motion to withdraw

because defense counsel explicitly stated that no ruling was necessary. The

defendant never denied that he was entering a plea of guilty nor objected to the

sentence. The defendant was trying to withdraw the plea so that he could obtain a

lower offense level, which he achieved when the government entered the

superceding information. The record shows that Mr. Cruz-Lopez received the

three-level downward offense level adjustment benefit of the Fast Track plea

agreement, and received a sentence at the low end of the advisory guideline range.

There is nothing to indicate that after accomplishing this goal, the defendant had

any further interest in withdrawing the plea. Beyond the clear parties intent

during the district court proceedings, caselaw also supports that there was no need

to begin proceedings anew with the filing of the superceding indictment. Bowen,

946 F.2d at 736. Having determined that Mr. Cruz-Lopez pleaded guilty, we next

consider the validity of the plea bargain’s waiver of the right to appeal.

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       B.     Was the plea agreement a valid waiver of Cruz-Lopez’s right to
              appeal?

       In United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004), we adopted a three-part

analysis to determine whether an appellate waiver is enforceable: “(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 as we define herein.” Id. at

1325. Here, analysis of all three prongs undisputedly underscore the waiver’s validity.

              a.     The disputed appeal falls within the scope of the waiver of appellate
                     rights.

       “The first prong of the analysis requires the court to determine if the disputed

appeal falls within the scope of the appellate waiver.” Id. at 1325. In determining a

waiver’s scope, “[the court] will strictly construe[] [the appellate waiver] and any

ambiguities will be read against the Government and in favor of a defendant’s appellate

rights.” Id. (quoting United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc)).

       In his plea agreement, Mr. Cruz-Lopez specifically waived the right to appeal any

“any sentence within the applicable sentencing guideline range and imposed in

conformity with this plea agreement.” Rec. vol. 1, doc. 15, at 9. He also waived the right

to “any collateral attack” on his sentence, with the exception of an ineffective assistance

of counsel claim. This appeal thus falls squarely and clearly within the scope of the plea

agreement. Id. Mr. Cruz-Lopez does not raise an ineffective assistance of counsel claim

on appeal; rather he is challenging the sentencing guideline range and the sentence

                                             10
imposed. Both of these claims fall within the scope of the waiver.

              b.     The waiver was knowing and voluntary.

       “The second prong of the analysis requires the court to ascertain whether the

defendant knowingly and voluntarily waived his appellate rights.” Hahn, 359 F.3d at

1325. The burden is on the defendant to show that he did not knowingly and voluntarily

waive his right to appeal. United States v. Ochoa-Colchado, 521 F.3d 1292, 1299 (10th

Cir. 2008). The court looks to two factors to determine if the plea was knowing and

voluntary: (1) does the language of the agreement state that the defendant entered the

agreement knowingly and voluntarily, and (2) was there an adequate Federal Rule of

Criminal Procedure 11 colloquy. Hahn, 359 F.3d at 1325. Mr. Cruz-Lopez’s statements

and actions easily clear both hurdles. First, paragraph 5 of the plea agreement states that

Mr. Cruz-Lopez “knowingly waives the right to appeal . . . .” Rec. vol. 1, doc. 15, at 9.

Further, Mr. Cruz-Lopez signed directly below the line: “I understand the agreement and

voluntarily sign it.” Id., doc. 17, at 10. The second factor is also met because during the

plea colloquoy, the district court clearly informed Mr. Cruz-Lopez and his counsel that he

was waiving his right to appeal, asked him whether he objected to the plea agreement and

whether the waiver was voluntary. Mr. Cruz-Lopez indicated every time that he

understood what he was agreeing to and did not object. Defense counsel similarly did not

object. Id. vol. 3, doc. 55, at 39–40. The record belies Mr. Cruz-Lopez’s suggestions

otherwise, and all evidence in the record shows that Mr. Cruz-Lopez knew what he was

pleading guilty to, and did so knowingly and voluntarily.

                                             11
              c.     Enforcement of the waiver does not result in a miscarriage
                     of justice.

       As with the second prong of Hahn, the burden belongs to Mr. Cruz-Lopez to show

that enforcement of the waiver would result in such a miscarriage of justice and again Mr.

Cruz-Lopez fails to carry his burden. Ochoa-Colchado, 521 F.3d at 1299. There are four

typical situations in which an appellate waiver will be found to be unenforceable as a

miscarriage of justice: (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.” United States v. Elliot, 264

F.3d 1171, 1173 (10th Cir. 2001).

       None of these factors are met here. There were no unacceptable factors, such as

race, employed in sentencing the defendant. Nor does the defendant claim ineffective

assistance of counsel. The sentence does not exceed the statutory maximum. Finally, the

waiver is not otherwise “unlawful” as it does not seriously affect “the fairness, integrity

or public reputation of judicial proceedings.” Hahn, 359 F.3d at 1327. In support of his

contention that to allow the waiver to stand would be a miscarriage of justice, Mr. Cruz-

Lopez again argues that he did not enter a plea agreement to the superceding indictment.

As discussed above, this argument clearly fails. We thus conclude there is no miscarriage

of justice in applying the plea waiver.




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                                 III. CONCLUSION

      Mr. Cruz-Lopez entered a waiver of his right to appeal as part of his Fast

Track guilty plea. His assent entitled him to a Fast Track plea agreement which

resulted in a three-level reduction in his offense level. We find that his valid

waiver of his right to appeal forecloses his attempt to bring this appeal.

Accordingly, the plea agreement is enforced and the appeal is dismissed.

                                       Entered for the Court



                                       Robert H. Henry
                                       Chief Circuit Judge




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