                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   June 24, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 11-2032
    v.                                         (D.C. No. 1:08-CR-02710-LH-1)
                                                          (D. N.M.)
    HERMINO BENAVIDEZ,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, O’BRIEN and HOLMES, Circuit Judges.



         Hermino Benavidez pleaded guilty to an indictment that accused him of

possessing with intent to distribute 50 grams or more of a mixture and substance

containing a detectable amount of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(A). Although Mr. Benavidez’s plea agreement contained

a waiver of his right to appeal from his conviction and sentence, he has filed an



*
      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 This order and judgment is not binding precedent, except under the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.
appeal. The United States has moved to enforce the appeal waiver pursuant to

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

We grant the motion and dismiss the appeal.

      Mr. Benavidez entered into the plea agreement in November 2009. As part

of the plea agreement, the government indicated that Mr. Benavidez might be

entitled to a two-level reduction under the “safety valve” provisions under

U.S.S.G. § 5C1.2(a)(1) through (5). The government further stipulated that, as of

the date of the plea agreement, Mr. Benavidez was entitled to a three-level

reduction in his base offense level for acceptance of responsibility. But the

government also stated that it was “free to withdraw this stipulation if the

Defendant engages in any conduct that is inconsistent with acceptance of

responsibility between the date of this agreement and the sentencing hearing.”

Mot. to Enforce, Att. 1 at 5.

      The plea agreement also included a waiver of Mr. Benavidez’s appellate

rights, which stated that “the Defendant knowingly waives the right to appeal

[his] conviction(s) and any sentence within the statutory maximum authorized by

law and imposed in conformity with this plea agreement.” Id. at 7.

Mr. Benavidez signed the agreement underneath the following statement: “I have

read this agreement and carefully reviewed every part of it with my attorney. I

understand the agreement and voluntarily sign it.” Id. at 9. At his plea hearing,




                                         -2-
Mr. Benavidez responded in the affirmative when the court asked him whether he

understood that he was waiving his right to appeal.

      While Mr. Benavidez was on release prior to sentencing, he was arrested

for selling crack cocaine to an undercover agent. As a result, the probation office

issued a revised presentence report (PSR) in which it indicated that

Mr. Benavidez was not eligible for any reduction for his acceptance of

responsibility because of his arrest for selling cocaine while he was on release.

Mr. Benavidez’s base offense level was 26. After a two-level enhancement for

having rifles in his home where he stored the cocaine and a two-level reduction

for submitting to a debrief, which made him eligible for the “safety-valve”

provisions, his total offense level remained at 26. With his criminal history

category of I, his resulting advisory guideline range was 63 to 78 months’

imprisonment.

      Mr. Benavidez objected to the enhancement for the firearms in his home

and the PSR’s recommendation that he was no longer eligible for a reduction for

acceptance of responsibility due to his arrest for selling cocaine while on release.

At the sentencing hearing, the court heard argument by both parties. The court

ultimately overruled Mr. Benavidez’s objections and sentenced Mr. Benavidez to

63 months in prison. Mr. Benavidez filed an appeal and the government filed a

motion to enforce the appeal waiver in the plea agreement.




                                         -3-
                                     Discussion

      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.” 359 F.3d at 1325.

      Scope of the Waiver

      Mr. Benavidez argues that the appeal waiver should not be enforced

because one of the grounds for his appeal falls outside of the scope of the waiver. 1

Specifically, he asserts that the following challenge to his sentence is not covered

by the appeal waiver: “the district court’s refusal to remove individuals from the

Las Vegas community from the courtroom during sentencing chilled his right to

allocute and also prevented his counsel from fully arguing on his behalf with

respect to the sentence, specifically his acceptance of responsibility,” Resp. to

Mot. to Enforce at 5. We disagree.

      The language of the appellate waiver in the plea agreement is broad and

bars an appeal from “any sentence within the statutory maximum authorized by

law and imposed in conformity with this plea agreement.” Mot. to Enforce, Att. 1

at 7. The statutory maximum for the crime Mr. Benavidez committed is life in

1
       Mr. Benavidez identifies six issues he has raised on appeal, but he
challenges the enforcement of the appeal waiver solely with respect to his first
issue. See Resp. to Mot. to Enforce at 5-12. Because he does not challenge the
enforcement of the appeal waiver with respect to the remaining five issues, we
take that as a concession that those issues are covered by the appeal waiver.

                                         -4-
prison, so his 63-month sentence falls within the statutory maximum allowed by

law. The sentence was also imposed in conformity with the plea agreement.

      Mr. Benavidez argues, however, that the parties contemplated that he would

be able to appeal from his sentence if there were procedural irregularities in the

imposition of the sentence. But that alleged understanding is not reflected in the

language of the waiver in the plea agreement. The waiver covers all appellate

challenges to Mr. Benavidez’s sentence, procedural or otherwise, unless the

sentence imposed is above the statutory maximum or does not conform to the plea

agreement. Cf. United States v. Smith, 500 F.3d 1206, 1210 (10th Cir. 2007)

(concluding that the language, “‘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,’” covered all appellate challenges to

the sentence except those regarding upward departures). Accordingly,

Mr. Benavidez’s challenge to the district court’s procedure at sentencing falls

within the scope of his appeal waiver.

      Knowing and Voluntary

      Mr. Benavidez contends he did not knowingly and voluntarily waive his

right to appeal procedural errors in the imposition of his sentence. This position,

however, is inconsistent with the broad language of the appeal waiver he agreed

to in the plea agreement and his response at the plea hearing that he understood

that he was waiving his right to appeal from any sentence that was imposed

                                         -5-
within the statutory maximum. 2 Moreover, he does not point to any evidence to

suggest that he did not understand the scope of his waiver. Mr. Benavidez bears

the “burden to present evidence from the record establishing that he did not

understand the waiver.” United States v. Edgar, 348 F.3d 867, 872-73 (10th Cir.

2003). He has failed to do so.

        Miscarriage of Justice

        Finally, Mr. Benavidez argues that enforcing the waiver would result in a

miscarriage of justice. This factor requires Mr. Benavidez to show that (1) “the

district court relied on an impermissible factor such as race;” (2) “ineffective

assistance of counsel in connection with the negotiation of the waiver renders the

waiver invalid;” (3) his “sentence exceeds the statutory maximum;” or (4) his

“waiver is otherwise unlawful” and “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Hahn, 359 F.3d at 1327 (quotations

omitted).

2
    The following exchange took place at the plea hearing:

        THE COURT: . . . you’ve waived your right to appeal the sentence
        if it’s made within the statutory maximum. Do you understand that
        provision?
        THE DEFENDANT: Yes, your Honor.
        THE COURT: So if the Court sentences you within the
        maximum sentence that I’ve outlined for you, even though it may
        be more than you expect here today, you’re giving up your right
        to appeal. Do you understand that?
        THE DEFENDANT: Yes, your Honor.

Mot. to Enforce, Att. 2 at 12.

                                         -6-
      Mr. Benavidez contends that “[i]njustice results from preventing a

defendant from presenting information and argument that is material to mitigation

(here, his cooperation with authorities from the very beginning).” Resp. to Mot.

to Enforce at 11. Presumably this cursory argument relates to “the waiver being

otherwise unlawful,” see Hahn, 359 F.3d at 1327, because none of the other

circumstances identified under the miscarriage-of-justice analysis are even

arguably related to Mr. Benavidez’s argument. But, assuming that is the case,

Mr. Benavidez misunderstands this piece of the miscarriage-of-justice analysis.

This exception to enforcing the appeal waiver looks to whether “the waiver is

otherwise unlawful, not to whether another aspect of the proceeding may have

involved legal error.” Smith, 500 F.3d at 1213 (quotations and citations omitted).

Mr. Benavidez’s argument that alleged errors in the district court’s sentencing

procedure should invalidate his appellate waiver “illustrates what Hahn called

‘the logical failing[ ] of focusing on the result of the proceeding, rather than on

the right relinquished, in analyzing whether an appeal waiver is [valid].’” Id.

(quoting Hahn, 359 F.3d at 1326 n.12). Mr. Benavidez has failed to show that

enforcing the waiver would result in a miscarriage of justice.

      Accordingly, we GRANT the motion to enforce the appeal waiver and

DISMISS the appeal.

                                        ENTERED FOR THE COURT
                                        PER CURIAM


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