                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                            May 26, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 14-3109
                                                 (D.C. No. 6:14-CM-60012-EFM-1)
RICARDO GARCIA-CHIHUAHUA,                                     (D. Kan.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, TYMKOVICH, and McHUGH, 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); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

                               I.   INTRODUCTION

      Ricardo Garcia-Chihuahua was sentenced to eighteen months’ imprisonment

for violating the terms of his supervised release imposed after being convicted for

unlawful reentry into the United States in 2008 (the 2008 Reentry Case). On appeal,


      *
         This order and judgment is not binding precedent, except under the doctrines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.
he argues this sentence should be vacated based on an alleged due process violation

in a separate matter in which Mr. Garcia-Chihuahua pled guilty in 2013 to unlawful

reentry into the United States (the 2013 Reentry Case). Specifically, Mr. Garcia-

Chihuahua claims his guilty plea in the 2013 Reentry Case was not knowing and

voluntary because he was not informed that the 2008 Reentry Case would be

transferred to the same federal district in which he pled guilty in the 2013 Reentry

Case. This transfer resulted in the same federal judge imposing sentence for the

violation of the conditions of supervised release in the 2008 Reentry Case and the

conviction in the 2013 Reentry Case. We affirm.

                                II.   BACKGROUND

      In 2008, Mr. Garcia-Chihuahua was convicted of unlawful reentry after

deportation in the Western District of Texas (the 2008 Reentry Case). He was

sentenced to twenty-seven months’ imprisonment and three years of supervised

release. One of the conditions of his supervised release prohibited Mr. Garcia-

Chihuahua from entering the United States without legal documentation. Mr. Garcia-

Chihuahua was released from prison in April 2012, and his three-year supervised

release term began at that time. In July 2012, Mr. Garcia-Chihuahua was removed to

Mexico, his country of citizenship.

      In November 2013, while he was still under supervised release for his 2008

conviction, Mr. Garcia-Chihuahua was found in Kansas without documentation and

was indicted in the District of Kansas for unlawful reentry after deportation, in

violation of 8 U.S.C. § 1326(a), (b) (the 2013 Reentry Case). Mr. Garcia-Chihuahua

                                           2
and the United States entered into a plea agreement in the 2013 Reentry Case under

Federal Rule of Criminal Procedure 11(c)(1)(C), pursuant to which the Government

agreed to seek a sentence within the range set by the U.S. Sentencing Guidelines

(Guidelines) and Mr. Garcia-Chihuahua agreed to waive certain rights, including his

right to appeal or collaterally attack the prosecution, conviction, or sentence

associated with the plea. Mr. Garcia-Chihuahua therefore pled guilty to unlawful

reentry, and the district court accepted the plea and set his sentencing hearing for

two-and-a-half months later.

      While Mr. Garcia-Chihuahua’s 2013 Reentry Case was pending in the District

of Kansas, the Government filed a motion in the Western District of Texas to revoke

Mr. Garcia-Chihuahua’s supervised release in the 2008 Reentry Case. The basis for

the Government’s motion for revocation was that Mr. Garcia-Chihuahua violated the

terms of his supervised release by reentering the United States without

documentation. The Western District of Texas thus reopened the 2008 Reentry Case

as a result of Mr. Garcia-Chihuahua’s supervised release violation.

       Before Mr. Garcia-Chihuahua’s sentencing hearing in the 2013 Reentry Case,

but after the court had accepted his guilty plea, the Western District of Texas

transferred Mr. Garcia-Chihuahua’s reopened 2008 Reentry Case to the District of

Kansas. Although the Government and Mr. Garcia-Chihuahua were aware that the

2008 Reentry Case had been reopened before they entered the plea agreement in the

2013 Reentry Case, there was no indication at that time that the 2008 Reentry Case

would be transferred to Kansas. Accordingly, the plea agreement did not mention it.

                                           3
      Mr. Garcia-Chihuahua thereafter sought to renegotiate his plea agreement, and

the Government agreed to a modification. The parties submitted a joint motion to

amend the plea agreement in which they requested a total sentence of thirty months

to be imposed for both the 2013 Reentry and the violation of the conditions of

supervised release in the 2008 Reentry Case. The parties reached this sentence by

adopting the middle of the Guidelines range for the 2013 Reentry offense, twenty-

four months, and adding a consecutive six months for the supervised release offense

in the 2008 Reentry Case. The parties explained that their motivation in seeking an

amended plea agreement was to avoid a potential appeal in the 2008 Reentry Case, in

which Mr. Garcia-Chihuahua had not waived his appellate rights.

      The district court held a hearing on the parties’ motion to amend the plea

agreement. The court expressed its concern with the suggested thirty-month sentence,

explaining the Guidelines range sentence for the 2013 Reentry offense was twenty-

one to twenty-seven months and the Guidelines range for the supervised release

offense in the 2008 Reentry Case was eighteen to twenty-four months. The court

reasoned that “despite three prior offenses [for unlawful reentry] for which

[Mr. Garcia-Chihuahua] served prison time and was deported, he does not seem to

have learned the lesson, and he’s reentered again.” Therefore, the court felt that a

thirty-month combined sentence was too lenient and denied the motion to amend the

plea agreement.

      The district court held a joint sentencing hearing for the 2013 Reentry offense

and the supervised release offense in the 2008 Reentry Case, but did not consolidate

                                           4
the cases. At that hearing, the district court sentenced Mr. Garcia-Chihuahua to

twenty-one months’ imprisonment for the 2013 Reentry Offense and eighteen

months’ imprisonment for the supervised release offense in the 2008 Reentry Case, to

be served consecutively1 for a total of thirty-nine months’ imprisonment. Mr. Garcia-

Chihuahua filed a timely notice of appeal, challenging only the sentence imposed in

the 2008 Reentry Case for violation of the conditions of supervised release. Oddly,

he challenges the 2008 Reentry Case sentence based on an argument that his guilty

plea in the 2013 Reentry Case was not knowing and voluntary.

                                   III. DISCUSSION

       Mr. Garcia-Chihuahua argues his due process right to be fully and fairly

apprised of the consequences of his guilty plea in the 2013 Reentry Case was violated

because he was not informed that the 2008 Reentry Case might be transferred to the

same district for sentencing. In terms of relief, he requests that we vacate his

eighteen-month sentence in the 2008 Reentry Case. In response, the Government

raises three alternative arguments: (1) we lack jurisdiction to hear Mr. Garcia-

Chihuahua’s appeal, (2) Mr. Garcia-Chihuahua failed to preserve his due process

argument, and (3) Mr. Garcia-Chihuahua’s due process argument fails to raise a

proper challenge to his sentence in the 2008 Reentry Case. Although we disagree


       1
         When the district court pronounced its tentative sentence, the court
mistakenly said that the sentences would run concurrently. But when the court
officially imposed the sentence, it stated that they would run consecutively. Counsel
for Mr. Garcia-Chihuahua brought this to the court’s attention, but the district court
clarified that, if it had said concurrently, “that was a mistake” and that it “intended all
along that these would be consecutive sentences,” as it had previously indicated.
                                            5
with the Government’s jurisdictional and preservation arguments, we agree on the

merits and affirm the district court.

                                        A. Jurisdiction

      First, as to jurisdiction, the Government contends that because Mr. Garcia-

Chihuahua has appealed only the sentence entered in the 2008 Reentry Case but

raises an argument challenging the validity of his guilty plea in the 2013 Reentry

Case, he has asked us to review a case over which we do not have jurisdiction.2 But

Mr. Garcia-Chihuahua has not requested permission to withdraw his guilty plea or

asked that we alter his sentence in the 2013 Reentry Case; instead, he challenges the

validity of his sentence entered in the 2008 Reentry Case. Under 18 U.S.C.

§ 3742(a)(1), we have jurisdiction to review “an otherwise final sentence if the

sentence . . . was imposed in violation of law.” See also United States v. Washington,

759 F.3d 1175, 1180–81 (10th Cir. 2014) (explaining that “a conviction and

imposition of a sentence constitute a final judgment” under 28 U.S.C. § 1291 and

therefore this court has jurisdiction over an appeal from a final sentence, regardless




      2
         Mr. Garcia-Chihuahua argues we should deny the Government’s motion to
dismiss for lack of jurisdiction because the Government filed the motion more than
fourteen days after Mr. Garcia-Chihuahua filed his notice of appeal. See 10th Cir. R.
27.2(A)(3)(a) (“A motion [to dismiss for lack of appellate jurisdiction] should be
filed within 14 days after the notice of appeal is filed, unless good cause is shown.”).
But “an untimely motion does not result in forfeiture if the government raises the
issue in its merits brief.” United States v. Mendoza, 698 F.3d 1303, 1308 n.1 (10th
Cir. 2012). The Government presented its jurisdictional challenge in its merits brief
and therefore did not forfeit this argument. Moreover, we are always free to review
our own jurisdiction. See Shepherd v. Holder, 678 F.3d 1171, 1180 (10th Cir. 2012).
                                              6
of whether defendant’s arguments fall within one of the categories in § 3742(a)

(internal quotation marks omitted)).

      Mr. Garcia-Chihuahua timely appealed the otherwise final sentence in the

Supervised Release Case, which he contends was imposed in violation of the law.

Whether Mr. Garcia-Chihuahua’s argument based on a due process violation that

allegedly took place in a different case is a proper basis to challenge his sentence

goes to the merits of his appellate argument, not to jurisdiction. Cf. Hagans v. Lavine,

415 U.S. 528, 542 (1974) (explaining that jurisdiction “is not defeated . . . by the

possibility that the averments might fail to state a cause of action on which

petitioners could actually recover,” and therefore “dismissal of the case would be on

the merits, not for want of jurisdiction” (internal quotation marks omitted)). We

therefore deny the Government’s motion to dismiss for lack of jurisdiction.

                       B. Preservation and Standard of Review

      The parties also dispute the appropriate standard under which we should

review Mr. Garcia-Chihuahua’s due process challenge. The Government asserts

Mr. Garcia-Chihuahua failed to preserve this claim and we should therefore review it

for plain error. Mr. Garcia-Chihuahua on the other hand advocates for a de novo

standard of review. Although Mr. Garcia-Chihuahua did not specifically raise a due

process claim in the district court, as a whole, his arguments at his sentencing hearing

are sufficiently similar to his arguments on appeal for preservation purposes. At the

sentencing hearing, Mr. Garcia-Chihuahua argued he had not expected the sentencing

for violation of the conditions of supervised release in the 2008 Reentry Case to be

                                           7
transferred to Kansas, and he expressed concern that the transfer would lead to an

unanticipated increase in his sentence. Thus, Mr. Garcia-Chihuahua’s primary

argument for seeking a lower sentence in the 2008 Reentry Case was that he was not

fully apprised of the consequences of his guilty plea in the 2013 Reentry Case.

Whether this was sufficient to preserve Mr. Garcia-Chihuahua’s due process claim is

admittedly a close call, but because “this is not a case where a different result would

occur as a result of our standard of review,” we give Mr. Garcia-Chihuahua the

benefit of the doubt and conclude that the argument was sufficiently preserved.

United States v. Vann, 776 F.3d 746, 757 n.8 (10th Cir. 2015) (concluding that

objections made during an expert witness’s testimony, which came “in varying

forms,” were sufficient to preserve defendant’s appellate challenge to the reliability

of the expert’s testimony as a whole). We therefore review his due process argument

de novo. See United States v. Gurule, 461 F.3d 1238, 1247 (10th Cir. 2006) (“Our

review of constitutional challenges to a sentence is de novo.”).

                                       C. Merits

      Turning to the merits of Mr. Garcia-Chihuahua’s due process argument, we

agree with the Government that this argument fails to state a proper basis for vacating

Mr. Garcia-Chihuahua’s sentence in the 2008 Reentry Case. Simply, Mr. Garcia-

Chihuahua fails to explain how an alleged due process violation in the 2013 Reentry

Case renders his sentence for violation of the conditions of supervised release in the

2008 Reentry Case unlawful. Mr. Garcia-Chihuahua does not argue the alleged due

process violation undermines the district court’s finding that he violated the terms of

                                           8
his supervised release; nor does he claim the due process violation resulted in an

incorrect application of the Guidelines, the imposition of a sentence that exceeded the

permissible Guidelines range, or the imposition of a sentence that was otherwise

unreasonable. Instead, his due process claim challenges solely the validity of his

guilty plea in the separate 2013 Reentry Case, which says nothing of the lawfulness

of his sentence in the Supervised Release Case.

      Indeed, even if Mr. Garcia-Chihuahua’s due process claim were meritorious—

something we cannot decide here— the appropriate remedy would be to permit him to

withdraw his guilty plea in the 2013 Reentry Case, not to vacate his sentence in the

2008 Reentry Case. See, e.g., United States v. McCann, 940 F.2d 1352, 1358, 1360

(10th Cir. 1991) (concluding that a defendant’s guilty plea was not voluntary and

therefore directing the district court to permit the defendant to withdraw his guilty

plea). But Mr. Garcia-Chihuahua cannot collaterally attack the guilty plea entered in

the 2013 Reentry Case in this appeal of the sentence imposed for violation of the

conditions of supervised release in the 2008 Reentry Case. See Bousley v. United

States, 523 U.S. 614, 621 (1998) (“[T]he voluntariness and intelligence of a guilty

plea can be attacked on collateral review only if first challenged on direct review.”).

      Our conclusion is not affected by the fact that Mr. Garcia-Chihuahua waived

his right to appeal in the 2013 Reentry Case through the plea agreement. First, if

Mr. Garcia-Chihuahua did not knowingly and voluntarily enter the guilty plea in the

2013 Reentry Case, the plea agreement, including the provision waiving Mr. Garcia-

Chihuahua’s appellate rights, would be unenforceable. See United States v. Mitchell,

                                           9
633 F.3d 997, 1001 (10th Cir. 2011) (“If a guilty plea is not knowing and voluntary,

it is void and any additional waivers in the plea agreement generally are

unenforceable.” (citation omitted)). Second, Mr. Garcia-Chihuahua’s decision to

waive his appeal rights in the 2013 Reentry Case did not create a right to raise claims

of error occurring in that case through an appeal from the sentence entered in a

different case. In other words, Mr. Garcia-Chihuahua was not deprived of a means to

raise his due process argument; instead, he failed to pursue the argument in the

correct case.

                                 IV. CONCLUSION

      Because Mr. Garcia-Chihuahua’s due process argument fails to state a valid

basis for vacating the sentence imposed as a result of the revocation of his supervised

release in the 2008 Reentry Case, we affirm the district court’s imposition of that

sentence.


                                           Entered for the Court


                                           Carolyn B. McHugh
                                           Circuit Judge




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