                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                     February 16, 2007
                            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. 06-3264
                                                 (D.C. No. 04-CR-40154-SAC)
    PAUL PADILLA-RODRIGUEZ, also                           (D . Kan.)
    know n as Jose Luis Negron-Torres,

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and TYM KOVICH, Circuit Judges.




         Defendant Paul Padilla-Rodriguez pled guilty, pursuant to a plea

agreement, to aggravated re-entry into the United States as a previously removed

alien, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Under the terms of the plea

agreement, he waived his right to appeal or collaterally attack any matter in

connection with his prosecution, conviction or sentence, except to the extent that


*
      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 This order and judgment is not binding precedent, except under the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.
the district court departed upward from the applicable sentencing guideline range,

as determined by the court. 1 The district court determined that the advisory

sentencing guideline range was seventy to eighty-seven months’ imprisonment,

and it imposed a seventy-month sentence on defendant.

      Notwithstanding the appeal waiver, defendant appealed. He raised three

claims: that the district court erred in denying his motion to withdraw his guilty

plea, erred in denying his request for new counsel, and imposed an unjust

sentence. The government has moved to enforce the appeal waiver under United




1
      The text of the appeal waiver states:

      11. W aiver of Appeal and Collateral Attack.
      Defendant knowingly and voluntarily waives any right to appeal or
      collaterally attack any matter in connection with this prosecution,
      conviction and sentence. 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, including, but not
      limited to, a motion brought under Title 28, U.S.C. § 2255 [except as
      limited by United States v. Cockerham, 237 F.3d 1179, 1187
      (10 th Cir. 2001)] and a motion brought under Title 18, U.S.C.
      § 3582(c)(2). 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.

Plea Agreement at 8-9.

                                         -2-
States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (per curiam) (en banc). W e grant

the motion and dismiss the appeal.

      In Hahn, this court held that a w aiver of appellate rights w ill be enforced if

(1) “the disputed appeal falls within the scope of the waiver of appellate rights;”

(2) “the defendant knowingly and voluntarily waived his appellate rights;” and

(3) “enforcing the waiver would [not] result in a miscarriage of justice.”

359 F.3d at 1325. The government’s motion addresses all of these considerations,

explaining why none of them undermine defendant’s appeal waiver. In this

regard, we note that, “an appeal of a denial of a motion to withdraw a guilty plea

is an attempt to contest a conviction on appeal and thus falls within the plain

language of [an appeal] waiver provision.” United States v. Leon,         F.3d    ,

No. 06-3195, 2007 W L 416913, at *2 (10th Cir. Feb. 8, 2007) (alteration in

original; quotation omitted). Defendant has responded that the motion should be

denied because he did not knowingly and voluntarily waive his appellate rights

and enforcing the plea agreement would result in a miscarriage of justice. He

does not dispute that the claims raised in his appeal fall within the scope of the

appeal w aiver, and thus, we need not address this factor. Id. at *1.

                          Knowing and Voluntary W aiver

      Defendant claims that he did not knowingly and voluntarily waive his

appellate rights because he lacks understanding of the English language. He

argues that the court should take into consideration his body language or

                                          -3-
non-spoken gestures and his lack of formal education. In determining whether

defendant’s waiver of his right to appeal was made knowingly and voluntarily,

we consider “whether the language of the plea agreement states that [he] entered

the agreement knowingly and voluntarily” and whether there is “an adequate

Federal Rule of Criminal Procedure 11 colloquy.” Hahn, 359 F.3d at 1325.

Defendant bears the “burden to present evidence from the record establishing that

he did not understand the waiver.” Id. at 1329 (quotation omitted).

      He has not met this burden. The transcripts of defendant’s Rule 11 plea

colloquy demonstrate that he was given an interpreter at the start of the Rule 11

plea colloquy, and that the entire colloquy and plea hearing proceedings were

translated to and for him. The defendant stated that he had a ninth-grade

education. At no time did he indicate that he had any difficulty understanding the

charges against him, the plea agreement, the appeal waiver, or any aspect of the

plea colloquy, and he offers no evidence now that the interpreter was inadequate

or insufficient. At the plea colloquy, the court summarized the plea agreement,

and informed him of the constitutional rights he was waiving, including the right

to appeal. Defendant represented to the court that he had reviewed the written

plea agreement, which he signed, with his attorney, that he was entering into the

plea agreement of his own free will, that he had a full opportunity to discuss with

his attorney the constitutional rights he was w aiving, including his right to appeal,

and that he was satisfied with his attorney’s representation. “[S]tatements made

                                          -4-
in a plea colloquy are presumed to be true.” United States v. Edgar, 348 F.3d

867, 873 (10th Cir. 2003). On these facts, we find that defendant’s appeal waiver

was knowingly and voluntarily given.

                                M iscarriage of Justice

      Defendant argues that enforcement of the plea agreement would seriously

affect the fairness, integrity, or public reputation of judicial proceedings. See

Hahn, 359 F.3d at 1327 (holding that a miscarriage of justice will result if “the

waiver is otherwise unlaw ful,” to the extent that the alleged error “seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.”)

(quotation omitted). He contends that enforcing the appeal waiver would be

unjust because the district court (1) included a ten-year old conviction in

calculating his criminal history category and enhancing his sentence, and (2) did

not exercise its discretion to grant a downward departure under U.S.S.G. § 5K3.1,

in order to avoid sentencing disparities between offenders where he was

sentenced and those sentenced in so-called “fast track” districts. See United

States v. M artinez-Trujillo, 468 F.3d 1266, 1268 (10th Cir. 2006) (explaining

nature of potential sentencing disparity and holding that sentence is not rendered

unreasonable by sentencing court’s failure to consider this sentence-disparity

issue).

      Quite clearly, however, defendant waived the right to assert these claims on

appeal when he waived the right to appeal any sentence imposed that was w ithin

                                          -5-
the guideline range determined appropriate by the court. The miscarriage of

justice exception looks to w hether “the waiver is otherwise unlawful,” Hahn, 359

F.3d at 1327 (emphasis added), not whether some other aspect of the proceeding

may have involved legal error. “The relevant question . . . is not whether

[defendant’s] sentence is unlaw ful . . ., but whether . . . his appeal waiver itself

[is] unenforceable.” United States v. Porter, 405 F.3d 1136, 1144 (10th Cir.),

cert. denied, 126 S. Ct. 550 (2005).

      The plea agreement here made clear the maximum sentence defendant faced

for the crime of conviction, that he gave up multiple constitutional and appellate

rights in exchange for concessions from the government, and that his sentence

would be determined by taking into consideration the applicable advisory

guidelines. As in Porter, the sentence imposed by the district court complied

with the terms of the plea agreement and with the understanding of the plea

defendant expressed at the plea hearing. Defendant has not demonstrated that it

would be a miscarriage of justice to enforce the w aiver.

      The government’s motion to enforce the waiver is GRANTED and the

appeal is DISM ISSED. The mandate shall issue forthwith.


                                         ENTERED FOR THE COURT
                                         PER CURIAM




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