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

                           FOR THE TENTH CIRCUIT                        May 17, 2013

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

             Plaintiff-Appellee,

v.                                                       No. 13-1008
                                               (D.C. No. 1:11-CR-00279-PAB-1)
XAVIER GALVEZ-CHAVEZ,                                      (D. Colo.)
a/k/a Jose Luis Martinez-Zavala,
a/k/a Alvaro Felix Borquez,
a/k/a Fabio Armenta-Bojorquez,

             Defendant-Appellant.


                           ORDER AND JUDGMENT*


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      This matter is before the court on the government’s motion to enforce the

appeal waiver contained in the plea agreement executed by defendant-appellant

Xavier Galvez-Chavez. We grant the government’s motion and dismiss the appeal.




*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Mr. Galvez-Chavez pled guilty pursuant to a plea agreement to a two-count

superseding information that charged him with one count of conspiracy to distribute

and possess with intent to distribute methamphetamine and one count of illegal

reentry after deportation subsequent to an aggravated felony conviction. The plea

agreement stated the parties’ belief that Mr. Galvez-Chavez would have a total

offense level of 33 and a tentative criminal history category of III, which would

produce a sentencing guidelines range of 168-210 months. The plea agreement

recognized that Mr. Galvez-Chavez had provided assistance to the government and

intended to provide further assistance. Accordingly, the plea agreement stated the

government’s intent to file a U.S.S.G. § 5K1.1 motion recommending that the court

depart downward from the applicable guideline range to a range of 100-126 months

and providing authority under 18 U.S.C. § 3553(e) to sentence Mr. Galvez-Chavez

below the ten-year mandatory minimum for the drug offense.

      When the presentence report was prepared, however, it showed that

Mr. Galvez-Chavez had a higher criminal history category than anticipated, and the

court calculated the applicable guideline range to be 188-235 months. After

considering the extent of Mr. Galvez-Chavez’s assistance, however, the court

accepted the government’s motion to depart downward to a range of 100-126 months.

The court concluded that a sentence at the high end of this new range was

appropriate, and it sentenced Mr. Galvez-Chavez to concurrent terms of 126 months

in prison plus 5 years of supervised release.


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       As part of his plea agreement, Mr. Galvez-Chavez

       knowingly and voluntarily waive[d] the right to appeal any matter in
       connection with this prosecution, conviction, or sentence unless it meets
       one of the following three criteria: (1) the sentence imposed is above
       the maximum penalty provided in the statute of conviction; (2) the
       Court, after determining the otherwise applicable sentencing guideline
       range, either departs or varies upwardly, or (3) the Court imposes a
       sentence that exceeds the range provided for a[] total[1] offense level of
       33 and a Criminal History Category of III (168-210 months).

Mot. to Enforce, Attach. 1 (Plea Agrmt.), at 4. He also “knowingly and voluntarily

waive[d] the right to appeal the manner in which the sentence is determined on

grounds set forth in 18 U.S.C. § 3742.” Id. Despite this waiver, Mr. Galvez-Chavez

filed a notice of appeal.

       Seeking to enforce the appeal waiver, the government has filed a motion in

accordance with United States v Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004)

(en banc) (per curiam). Counsel for Mr. Galvez-Chavez has filed a response arguing

that the waiver should not be enforced because there is evidence that the waiver was

not knowing and voluntary.

       We will enforce an appeal waiver as long as three elements are met: (1) “the

disputed appeal falls within the scope of the appellate waiver”; (2) “the defendant


1
       As originally drafted, the plea agreement referred to “an adjusted offense level
of 33.” But at the change of plea hearing, the court and parties agreed that it should
more accurately refer to “a total offense level of 33” because Mr. Galvez-Chavez’s
adjusted offense level was actually 36, but he would reach a “total” offense level of
33 with a 3-point reduction for acceptance of responsibility. Compare Mot. to
Enforce, Attach. 1 (Plea Agrmt.), at 4, with id., Attach. 2 (Change of Plea Hrg.
Trans.), at 3-4.


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knowingly and voluntarily waived his appellate rights”; and (3) “enforcing the waiver

will [not] result in a miscarriage of justice.” Id. at 1325, 1327.

      In his docketing statement,2 Mr. Galvez-Chavez lists the following issues for

appeal:

      (1) Whether this appeal is barred by the partial waiver of appeal rights
      in the plea agreement;

      (2) Whether the sentence imposed is unreasonable and excessive;

      (3) Whether the more-than-usual cooperation by Defendant/Appellant
      with the government was given proper weight and consideration by the
      Government and by the Court; [and]

      (4) Whether trial-court counsel provided reasonably effective
      representation (which would likely have to be addresses in a subsequent
      proceeding under 28 U.S.C. § 2255).

United States v. Galvez-Chavez, No. 13-1008, Docketing Stmt., at 3.

      As described above, the appeal waiver in the plea agreement waived all

matters in connection with the prosecution, conviction or sentence except matters in

three narrow categories relating to sentencing. None of Mr. Galvez-Chavez’s issues

falls within one of those categories. Accordingly, all the proposed issues are within

the scope of the waiver.

      Nonetheless, we “will only enforce appeal waivers that defendants enter into

knowingly and voluntarily.” United States v. Salas-Garcia, 698 F.3d 1242, 1254


2
       The docketing statement was filed by Mr. Galvez-Chavez’s appointed trial
counsel, who moved to withdraw on appeal. We appointed new counsel, who filed
the response to the government’s motion to enforce.


                                          -4-
(10th Cir. 2012) (internal quotation marks omitted). To determine whether the

appeal waiver was knowing and voluntary, we will “examine[] whether the language

of the plea agreement states that the defendant entered the agreement knowingly and

voluntarily, and whether there was an adequate Federal Rule of Criminal Procedure

11 colloquy.” Id. Mr. Galvez-Chavez bears the burden of showing his waiver was

not knowing and voluntary. See id.

      In his response, Mr. Galvez-Chavez points to several facts that, he contends,

show that his waiver was not knowing and voluntary under the totality of the

circumstances. First, although he was given a copy of the plea agreement in Spanish,

he has no formal education and does not read Spanish well. Second, he did not sign

the plea agreement until the day of the change of plea hearing. Third, a change was

made to the wording of the plea agreement (see supra note 1), but he was not asked

whether he understood the change. Fourth, the calculation of his criminal history

category turned out to be higher than the parties contemplated when the plea

agreement was signed. And fifth, he was not happy with his appointed counsel and

twice moved to obtain new counsel, but his requests were denied.

      When viewed in light of the district court record, however, these facts--either

singly or together--do not demonstrate that the appeal waiver was not knowing and

voluntary. Based upon our review of the plea agreement, the extensive Rule 11

colloquy, and the district court filings concerning Mr. Galvez-Chavez’s attempts to




                                        -5-
obtain new counsel, we conclude that he knowingly and voluntarily waived his right

to appeal.

      Under the final factor of Hahn, the court will enforce an appellate waiver

unless it finds that “the enforcement of the waiver would constitute a miscarriage of

justice.” Id. at 1255 (internal quotation marks omitted). Enforcement of the waiver

may constitute a miscarriage of justice only if one of the following circumstances is

present: (1) “the district court relied on an impermissible factor such as race”;

(2) the “ineffective assistance of counsel in connection with the negotiation of the

waiver renders the waiver invalid”; (3) “the sentence exceeds the statutory

minimum”; or (4) “the waiver is otherwise unlawful.” Id. (internal quotation marks

omitted). Mr. Galvez-Chavez’s docketing statement lists a potential claim of

ineffective assistance of trial counsel. But even if the claim relates to trial counsel’s

negotiation of the plea agreement, Mr. Galvez-Chavez must wait to raise it in a

separate proceeding under 28 U.S.C. § 2255. See United States v. Novosel, 481 F.3d

1288, 1295 (10th Cir. 2007) (per curiam). And his plea agreement specifically

reserves his right to do so. See Mot. to Enforce, Attach. 1, at 4.

      Accordingly, we grant the government’s motion to enforce the appeal waiver

and dismiss the appeal.


                                                 Entered for the Court
                                                 Per Curiam




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