                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 16 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                    No. 02-2139
                                                   (D.C. No. CR-01-827)
 JORGE LUIS GERONIMO,                                (D. New Mexico)

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
MURPHY, Circuit Judge.


      By indictment filed on June 26, 2001, Jorge Luis Geronimo (“defendant”)

and his twin brother, Luis Ramirez Geronimo, were charged in the United States

District Court for the District of New Mexico with various drug offenses. The

defendant was a named defendant in five of the eight counts contained in the

indictment. On July 12, 2001, the defendant entered a plea of not guilty to all


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                         1
five counts. 1

       On November 19, 2001, the defendant, pursuant to a written plea agreement

with the United States, changed his plea to guilty of all of the five counts wherein

he was named as defendant. Specifically, the defendant pled guilty to count one

of the indictment charging him with conspiracy to possess and distribute more

than five grams of cocaine base in violation of 21 U.S.C. §§841(a)(1) and

(b)(1)(B), and to counts three, four, five, and eight, each of which charged him

with possessing with an intent to distribute cocaine base. Counts three and four

alleged that the amount of cocaine base involved was less than five grams.

Counts five and eight alleged that more than five grams was involved. The

conspiracy alleged in count one was alleged to have occurred from April 25, 2001

to June 6, 2001. The “possessions” alleged in counts three, four, five, and eight

were said to have occurred on May 1, 2001, May 7, 2001, May 11, 2001, and June

6, 2001, respectively.

       A presentence report was filed, to which defendant’s counsel filed certain

objections, with the probation officer filing a response thereto. The presentence

report set defendant’s total offense level at 21 and his criminal history category at



       Defendant’s twin brother, Luis Ramirez Geronimo, pled guilty to all eight
       1

counts of the indictment and was sentenced to 188 months imprisonment. He
appealed his sentence, which we affirmed. United States v. Geronimo, No. 03-
2007, 2003WL21907613 (10th Cir. Aug. 11, 2003). Waiver of a right to appeal
was not an issue in that case, as, will be developed, it is in the instant case.

                                          2
II, the guideline range therefor being 41 to 51 months imprisonment. However,

under U.S.S.G. §5G1.1(b), if the statutorily required minimum is greater than the

maximum of the applicable guideline range, the statutorily required minimum

“shall be the guideline sentence.” In this case, the statutorily required minimum

sentence was five years. Accordingly, at the sentencing hearing, the district court

sentenced the defendant to five years (60 months) imprisonment. 2 The following

day the defendant’s counsel filed a notice of appeal.

      In this court, the United States filed a motion to dismiss the appeal for lack

of appellate jurisdiction, that motion being based on paragraph 10 of the plea

agreement wherein the defendant agreed to waive his “appeal rights.” Counsel

for the defendant filed a response to the United States’ motion to dismiss. On

August 15, 2002, a panel of this court issued an order reserving judgment on

defendant’s motion to dismiss and referred the motion to the panel assigned to

hear the appeal “on the merits.”

      In his opening brief, counsel for the defendant asserts two grounds for

reversal: (1) the district court erred in determining the defendant’s criminal

history category to be II, and (2) the district court erred in refusing to grant

defendant “safety valve” relief. The United States in its answer brief again



      2
         The guideline range for the five counts to which the defendant pled
guilty, without any adjustments, was 168 to 210 months imprisonment.

                                           3
argues that the defendant by his plea agreement waived his right to appeal his

sentence and that the appeal should be dismissed for lack of appellate jurisdiction.

The United States does not respond, as such, to the matters raised by counsel for

the defendant in his opening brief. In his reply brief, counsel for defendant again

argues that the issues he seeks to raise on appeal are not within the scope of the

plea agreement waiver.

      We will now consider the United States’ motion to dismiss the appeal for

lack of jurisdiction, which, as already stated, is based on the plea agreement

entered into by the parties, wherein, according to the United States, the defendant

waived his right to appeal the sentence imposed in his case, the defendant

contending that the waiver provision does not include the two matters he seeks to

raise in this court. Accordingly, we will initially consider the two matters

defendant seeks to raise on appeal in the context of the record before us.

      Paragraph 10 of the plea agreement reads as follows:

                         WAIVER OF APPEAL RIGHTS

             10. The defendant is aware that Title 18, United States
             Code, Section 3742 affords a defendant the right to
             appeal the sentence imposed. Acknowledging that, the
             defendant knowingly waives the right to appeal his
             conviction and any sentence within the guideline range
             applicable to the statute of conviction as determined by
             the court after resolution of any objections by either
             party to the presentence report to be prepared in this
             case, and the defendant specifically agrees not to appeal
             the determination of the court in resolving any contested

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             sentencing factor. In other words, the defendant waives
             the right to appeal the sentence imposed in this case
             except to the extent, if any, that the court may depart
             upwards from the applicable sentencing guideline range
             as determined by the court. (Emphasis added).

      Counsel argues that the district court erred in fixing his criminal history

category at II, and that it should have been I, in which event the guideline range

would have been 37 to 46 months imprisonment, rather than 41 months to 51

months. So, if counsel were to succeed in his argument that Defendant’s criminal

history category should have been I, rather than II, his would be a pyrrhic victory

since the sentence would still be the statutory minimum of five years. However,

for reasons which will be later developed, we hold that the waiver involved in the

instant case is broad enough to include this particular argument.

      Counsel’s other argument, that the district court erred in not granting

defendant “safety valve” relief, is based on 18 U.S.C. § 3553(f) and U.S.S.G. §

5C1.2. The statute and the guideline provide that if certain conditions are met,

the district court is not required to impose the statutory minimum sentence and

shall impose a sentence within the guideline range. One of those conditions and

requirements is as follows:

      (5)    not later than the time of the sentencing hearing, the
             defendant has truthfully provided to the Government all
             information and evidence the defendant has concerning
             the offense or offenses that were part of the same course
             of conduct or of a common scheme or plan, but the fact
             that the defendant has no relevant or useful other

                                          5
             information to provide or that the Government is already
             aware of the information shall not preclude a
             determination by the court that the defendant has
             complied with this requirement.


      It would appear from statements made by counsel at the sentencing hearing,

the defendant had not complied with that particular requirement. At the hearing,

counsel for the defendant spoke as follows:

                    Mr. Geronimo has insisted that I also ask the
             Court for the safety valve in this case. He believes he is
             entitled to the safety valve because he does have only
             one prior misdemeanor conviction, and that he does not
             think the fact that the government will not allow- - well,
             the government will not take a debriefing because Mr.
             Geronimo will not incriminate his brother, but he thinks
             it’s unfair that he should be forced between the hostile
             choice of informing against a family member or
             suffering a greater amount of incarceration.

      Be all that as it may, laying aside the merits of the two matters defendant

seeks to raise on appeal, we must first decide whether these two matters were

within the scope of defendant’s waiver of his right to appeal. We hold that both

were. We believe that the last sentence in the waiver of rights contained in

paragraph 10 of the plea agreement clearly disposes of this matter. In the last

sentence in paragraph 10 of the plea agreement, the defendant clearly and

unequivocally states that he waives his right to appeal his sentence imposed

against him at sentencing, excepting any departure by the sentencing judge

“upwards” from the applicable guideline range as determined by the court. In this

                                          6
case, there was no upward departure from the guideline range as determined by

the court.

      In line therewith, at the change of plea hearing, the following colloquy

occurred between court and counsel and the defendant:



      THE COURT: . . . [a]nd you understand that according to this plea
      agreement, you waive all rights you have to appeal. So if I sentence
      you – the only way you can appeal is if I sentence you higher than
      what the sentencing guidelines call for. In other words, if I go above
      the guidelines, you can appeal that. Do you understand that?

      THE DEFENDANT: Yes.

      THE COURT: Do you understand that while you are sitting in prison
      and you think, “My stars, I wish I could appeal this case,” you can’t
      appeal the case? It’s over and done with.

      THE DEFENDANT: I know. I understand. Yes.

             ....

      THE COURT: All right, Mr. Butcher (Appellant’s trial and appellate
      attorney), did I correctly summarize the terms of the plea agreement?

      MR. BUTCHER: Yes, your Honor.

      THE COURT: Are you satisfied that your client understands each and
      every item in the plea agreement?

      MR. BUTCHER: Yes, your Honor....


      A plea agreement is reviewed by us under contract law and one element of

a contract is that there be “consideration.” United States v. Brye, 146 F.3d 1207,

                                         7
1210 (10th Cir. 1998). In this regard, there was obviously “consideration” by

both parties. The defendant, inter alia, waived various constitutional and

statutory rights, including his right to appeal his sentence, unless there be an

upward departure from the guideline range as determined by the district court.

The United States, in turn, stipulated that only 5 to 20 grams of cocaine would be

attributable to the defendant, that the defendant was entitled to a three level

reduction in his base offense level for acceptance of responsibility, that the

defendant was a “minor participant” and entitled to a downward adjustment in the

computation of his offense level, and that the United States would not prosecute

the defendant for various and sundry other crimes committed by the defendant and

known by the United States as of the date of the plea agreement. Rather

significant “concessions,” by both parties, we would observe. In sum, the two

matters which defendant asks us to review were within the waiver provision in

paragraph 10 of the plea agreement.

      In support of our disposition of the motion to dismiss for lack of

jurisdiction, see such cases as United States v. Elliott, 264 F.3d 1171 (10th Cir.

2001), United States v. Black, 201 F.3d 1296 (10th Cir. 2000), United States v.

Atterberry, 144 F.3d 1299 (10th Cir. 1998), and United States v. Hernandez, 134

F.3d 1435, 1457 (10th Cir. 1998).

      The motion to dismiss the appeal for lack of jurisdiction is granted and the


                                           8
appeal is dismissed. 3



                                            SUBMITTED FOR THE COURT

                                            Robert H. McWilliams
                                            Senior Circuit Judge




      3
       In view of our disposition of this appeal, the defendant’s motion to
supplement the record on appeal is denied. Also, in its brief, the government
suggests that sanctions should be imposed against defendant’s counsel for
appealing the sentence imposed by the district court. If that “suggestion” be
considered a “request,” it is denied.

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