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

                            FOR THE TENTH CIRCUIT                       January 9, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                         No. 13-3242
                                             (D.C. No. 2:12-CR-20066-KHV-JPO-11)
MARTIN MUNOZ-RODRIGUEZ,                                     (D. Kan.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before KELLY, LUCERO, and MATHESON, Circuit Judges.


      After entering into a plea agreement that included a waiver of his right to

appeal, Martin Munoz-Rodriguez pleaded guilty to conspiracy to manufacture, to

possess with intent to distribute, and to distribute 280 grams or more of cocaine base,

and to possess with intent to distribute and to distribute five kilograms or more of a

mixture or substance containing cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1),


*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
and 841(b)(1)(A) and 18 U.S.C. § 2. The district court sentenced him to 168 months

of imprisonment, at the low end of the advisory Guidelines range. When

Mr. Munoz-Rodriguez appealed, the government moved to enforce the appeal waiver

under United States v. Hahn, 359 F.3d 1315, 1325, 1328 (10th Cir. 2004) (en banc)

(per curiam). In response, citing Anders v. California, 386 U.S. 738 (1967),

Mr. Munoz-Rodriguez’s counsel asserted it would be frivolous to contest the motion

to enforce. Mr. Munoz-Rodriguez has responded to his counsel’s filing.

      Under Anders, we must examine the proceedings and “decide whether the case

is wholly frivolous.” 386 U.S. at 744. Hahn sets forth three factors for determining

whether an appeal 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.” 359 F.3d at 1325.

                                 Scope of the Waiver

      The first Hahn factor is whether the issues on appeal fall within the scope of

the waiver. Id. In his docketing statement, Mr. Munoz-Rodriguez indicates that he

wishes to appeal the denial of his request for a two-level reduction for being a minor

participant. In his pro se response, he asserts that his sentence was higher than the

ten-year sentence contemplated by the plea agreement he reviewed with his counsel

and that the court sentenced him based on a drug quantity much higher than the




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quantity that he admitted, in violation of Alleyne v. United States, 133 S. Ct. 2151

(2013).

      The plea agreement provides:

               11. Waiver of Appeal and Collateral Attack. The defendant
      knowingly and voluntarily waives any right to appeal or collaterally
      attack any matter in connection with this prosecution, the defendant’s
      conviction, or the components of the sentence to be imposed herein
      including the length and conditions of supervised release, as well as any
      sentence imposed upon a revocation of supervised release. The
      defendant is aware that Title 18, U.S.C. § 3742 affords a defendant the
      right to appeal the conviction and sentence imposed. By entering into
      this agreement, the defendant knowingly waives any right to appeal a
      sentence imposed which is within the guideline range determined
      appropriate by the court. The defendant also waives any right to
      challenge a sentence or otherwise attempt to modify or change his
      sentence or manner in which it was determined in any collateral attack
      . . . . In other words, the defendant waives the right to appeal the
      sentence imposed in this case except to the extent, if any, the court
      departs upwards from the applicable sentencing guideline range
      determined by the court. However, if the United States exercises its
      right to appeal the sentence imposed as authorized by Title 18, U.S.C.
      § 3742(b), the defendant is released from this waiver and may appeal
      the sentence received as authorized by Title 18, U.S.C. § 3742(a).

Mot. to Enforce, Attach. C at 6-7. In addition, the agreement states:

             4.     Application of the Sentencing Guidelines. The parties
      request that the United States Sentencing Guidelines (Guidelines) be
      applied by the Court to calculate the applicable sentence in this case and
      that a sentence consistent with the Guidelines be imposed by the Court.
      The defendant further waives any right to have facts that determine the
      offense level under the Guidelines alleged in an indictment and found
      by a jury beyond a reasonable doubt; agrees that facts that determine the
      offense level will be found by the Court at sentencing by a
      preponderance of the evidence and agrees that the Court may consider
      any reliable evidence, including hearsay; and the defendant agrees to
      waive all constitutional challenges to the validity of the Guidelines. . . .



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              5.     Relevant Conduct. The parties have agreed to the
       application of the Guidelines and therefore both the United States and
       the defendant understand that the conduct charged in any dismissed
       counts of the indictment is to be considered as well as all other
       uncharged related criminal activity as relevant conduct for purposes of
       calculating the offense level for Count 1, in accordance with United
       States Sentencing Guidelines (U.S.S.G.) § 1B1.3.

Id. at 3-4.

       The issues sought to be raised fall within these waiver provisions. And the

exceptions to the appeal waiver do not apply. Mr. Munoz-Rodriguez was sentenced

within the Guidelines range determined appropriate by the district court, and the

United States has not appealed from the sentence. The first Hahn factor is satisfied.1

                               Knowing and Voluntary

       The second factor is whether the waiver was knowing and voluntary. Hahn,

359 F.3d at 1325. In evaluating this factor, “we examine whether the language of the

plea agreement states that the defendant entered the agreement knowingly and

voluntarily,” and “we look for an adequate Federal Rule of Criminal Procedure 11

colloquy.” Id. “The defendant bears the burden to prove that he did not knowingly

and voluntarily enter into his plea agreement.” United States v. Anderson, 374 F.3d

955, 958 (10th Cir. 2004) (internal quotation marks omitted).




1
       Mr. Munoz-Rodriguez asserts that the alleged Alleyne violation is
jurisdictional and cannot be waived. We disagree. Alleyne is an extension of
Apprendi v. New Jersey, 530 U.S. 466 (2000), and “nothing prevents a defendant
from waiving his Apprendi rights,” Blakely v. Washington, 542 U.S. 296, 310 (2004).


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      The plea agreement’s waiver paragraph provides that the waiver is knowing

and voluntary. In addition, just before the signature block, the plea agreement states

that “it is true and accurate and not the result of any threats, duress or coercion,” and

that “[t]he defendant acknowledges that the defendant is entering into this agreement

and is pleading guilty because the defendant is guilty and is doing so freely and

voluntarily.” Mot. to Enforce, Attach. C at 9.

       At the plea colloquy, the court informed Mr. Munoz-Rodriguez that one of the

purposes of the hearing was “to determine . . . that you’re pleading guilty to that

charge freely and voluntarily and not the result of any force or threats against you nor

the result of any promises made to you except those contained in your written

Plea Agreement with the government.” Id., Attach. A at 5. The court reviewed

the right to an appeal, and it addressed the appeal waiver and confirmed that

Mr. Munoz-Rodriguez had discussed the waiver with counsel and understood it. The

court confirmed that he was not under the influence of any substance that could affect

his judgment, that he was pleading guilty freely and voluntarily, that his plea

agreement reflected the entirety of his agreement with the government, and that his

counsel had not coerced or forced him to plead guilty.

      Mr. Munoz-Rodriguez asserts that the plea agreement that his counsel

presented to him and that he accepted included a sentence of approximately ten years.

The record evidence, however, does not support the premise that he was unaware of

his sentencing exposure, making his plea unknowing and involuntary. The plea


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agreement that he signed states that the statutory range for the offense of conviction

is a minimum of ten years to a maximum of life imprisonment. And it specifically

provides that “[t]he defendant understands that the sentence to be imposed will be

determined solely by the United States District Judge. The United States cannot and

has not made any promise or representation as to what sentence the defendant will

receive.” Id., Attach. C at 5.

      Even assuming that these provisions were not in the plea agreement that

Mr. Munoz-Rodriguez reviewed, during the plea colloquy the court thoroughly

reviewed sentencing issues. It stated the minimum and maximum sentences.2 It

discussed the Guidelines and asked Mr. Munoz-Rodriguez whether he understood

that defense counsel “is giving you the benefit of his professional judgment and

experience instead of giving you absolute guarantee as to actually what’s going to

happen.” Id., Attach. A at 17-18. “Do you understand his estimate, even if made in

good faith, might be inaccurate and you might receive ultimately the life sentence

called for by the statute?” Id. at 18. The court stated that until a presentence report

was prepared and any disputed issues resolved, “there’s no way for anybody, whether

it be [defense counsel] or anybody else, to know what your actual sentence will be.”

Id. It discussed the various factors that go into sentencing and the fact of the court’s


2
       Mr. Munoz-Rodriguez states that the district court “failed to insure that [he]
was aware of the direct consequences of the decision to accept the plea, including the
maximum penalty to which [he] would be exposed.” Pro Se Resp. at 3. This
assertion is belied by the transcript of the plea colloquy.


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discretion, again cautioning that “all the various factors I’ve mentioned taken

together in some combination or even standing alone could have a big effect on the

length of the sentence that you ultimately receive.” Id. at 20. Finally, the court

warned him that the sentencing judge “may impose a more severe sentence despite

whatever is in this agreement,” id. at 21, and that he would have no ability to

withdraw his plea in that event. Caution after caution, Mr. Munoz-Rodriguez

repeatedly acknowledged his understanding. At no time during the colloquy did he

state any belief that his plea agreement provided for a ten-year sentence.

      In light of the record before us, we conclude that Mr. Munoz-Rodriguez has

not satisfied his burden of showing that he did not enter into the plea agreement

knowingly and voluntarily. To the extent that he is dissatisfied with his counsel’s

performance in the negotiation of the plea agreement, he must pursue such claims in

a collateral proceeding under 28 U.S.C. § 2255.

                                Miscarriage of Justice

      Finally, we consider whether enforcing the waiver would result in a

miscarriage of justice. Hahn, 359 F.3d at 1325. Under Hahn, a miscarriage of

justice is established only “[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.” Id. at 1327

(internal quotation marks omitted). The record before us does not indicate that any


                                          -7-
of these circumstances occurred, so we cannot conclude that enforcing the

waiver would result in a miscarriage of justice. Again, to the extent that

Mr. Munoz-Rodriguez is dissatisfied with his counsel’s performance in the

negotiation of the plea agreement, he must pursue such claims in a collateral

proceeding under 28 U.S.C. § 2255. See United States v. Porter, 405 F.3d 1136,

1144 (10th Cir. 2005) (applying the general rule that ineffective-assistance claims

should be pursued in a collateral proceeding even where a defendant seeks to

invalidate an appeal waiver based on counsel’s performance).

      Because it is “wholly frivolous” for Mr. Munoz-Rodriguez to oppose the

motion to enforce, Anders, 386 U.S. at 744, the motion to enforce is granted. The

appeal is dismissed.


                                               Entered for the Court
                                               Per Curiam




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