June 18, 2019

Tenth Circuit: Appeal Waiver Precluded District Court Review of Sentence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Amado on Monday, November 14, 2016.

Elias Vega Amado, an illegal immigrant, was caught in 2013 with guns, drugs, money, and other incriminating evidence. He was charged with five counts, and pleaded guilty to possession of methamphetamine and illegal reentry. As part of his plea agreement, he “knowingly and voluntarily waive[d] his right to . . . move to modify under 18 U.S.C. 3582(c)(2) or some other ground, his sentence as imposed by the court[.]” His Guidelines range was 235 to 293 months, and he was sentenced to 240 months.

In 2014, the Sentencing Guidelines were amended, and the base offense levels for drug quantities were lowered, effectively lowering minimum sentences for drug offenses. Under the new Guidelines scheme, Defendant’s Guidelines range would be from 188 to 235 months. Defendant filed a motion under 18 U.S.C. § 3582(c)(2) for sentence reduction, which the government opposed. The district court denied his first motion without explanation. Defendant appealed, but asked that pleadings be held in abeyance because the government reportedly would not oppose another motion for sentence reduction. Defendant filed a second motion for sentence reduction in district court, which the district court again denied, issuing findings as to both motions. The district court opined that defendant’s first motion did not present a close question, given the plea waiver and the seriousness of defendant’s offenses. The district court construed the second motion as a motion to reconsider and held it was untimely filed. Defendant appealed.

On appeal, the Tenth Circuit evaluated defendant’s claim that his appeal waiver was not knowing and intelligent because he did not anticipate the amendment to the Guidelines. The Tenth Circuit was not persuaded. The Tenth Circuit held that it had previously ruled that a defendant’s waiver of unforeseeable future events was both commonplace and enforceable. The Tenth Circuit affirmed the district court’s denial of defendant’s first motion.

Turning to the second motion, the Tenth Circuit found the only problem was that after the district court determined the motion was untimely, it ruled on the motion anyway instead of dismissing it.

The Tenth Circuit affirmed the district court’s decision on defendant’s first motion. As to the second motion, the Tenth Circuit vacated the judgment and remanded with instructions to dismiss it.

Tenth Circuit: Reinstatement of Removal Not Final Until Reasonable Fear Proceedings Complete

The Tenth Circuit Court of Appeals issued its opinion in Luna-Garcia v. Holder on Tuesday, February 10, 2015.

Melida Teresa Luna-Garcia is a native of Guatemala whose removal was ordered in 2004. She executed that order in 2007 when she left the United States and returned to Guatemala. She was again discovered in the United States on July 9, 2014, and DHS reinstated the 2004 removal order on July 11, 2014. Luna-Garcia expressed fear of harm if she returned to Guatemala and was referred to an asylum officer. She filed a petition for review with the Tenth Circuit on August 11, 2014, before the asylum officer issued a reasonable fear determination. Later, the asylum officer determined she did not have a reasonable fear, but an immigration judge has since reversed the asylum officer’s finding and Luna-Garcia is now in withholding of removal proceedings before the immigration judge.

Luna-Garcia requested the Tenth Circuit to determine when a reinstatement of removal order is final for purposes of appeal. The Tenth Circuit explained the process of reinstating a removal order and possibilities for review of reinstatement. The INA defines finality in terms of review by the BIA, but reinstatement orders are not appealable to the BIA. The Tenth Circuit examined the meaning of “final” and found that it generally means there is nothing more to do than execute the judgment. In the case where an alien argues fear of harm precludes removal, the reinstatement order is not final until the reasonable fear proceedings are complete.

The Tenth Circuit granted the government’s motion and dismissed the proceedings for lack of jurisdiction.

Tenth Circuit: United States v. Black Did Not Change Tenth Circuit Precedent

The Tenth Circuit Court of Appeals issued its opinion in United States v. Garcia-Ramirez on Wednesday, February 18, 2015.

Marcos Garcia-Ramirez entered into a plea agreement that included an appeal waiver, pleading guilty to one count of illegal reentry into the United States and receiving a 19-month sentence. Despite the appeal waiver, Garcia-Ramirez challenged his sentence as “unreasonable,” arguing simply that the court should exercise its discretion to bypass any decision on whether to enforce an appeal waiver pursuant to United States v. Black, 773 F.3d 1113, 1115 n.2 (10th Cir. 2014).

The Tenth Circuit noted that Garcia-Ramirez’s argument is based on a misreading of BlackBlack did not change the Tenth Circuit’s judicial jurisprudence but merely addressed a matter of judicial economy in deciding cases. United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004), continues to be binding precedent regarding enforceability of appeal waivers, and since Garcia-Ramirez failed to cite even a single Hahn factor, his appeal failed and the motion to enforce was granted.

Tenth Circuit: Judge’s Comments Could Not Be Shown to Have Influenced Sentence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Johnson on Wednesday, July 2, 2014.

Vanity Johnson pleaded guilty to aggravated identity theft and conspiracy to commit bank fraud, aggravated identity theft, and mail theft. As part of her plea agreement, Johnson admitted that she committed the criminal acts knowingly, voluntarily, and willingly, but asserted that she was a victim of violence at the hands of co-defendant Mario Diaz and that she was coerced into performing the acts because he would beat her if she did not perform them. Despite the appeal waiver in Johnson’s plea agreement, she appealed the imposition of the sentence against her, alleging that the district court injected gender bias into its sentencing decision and allowing the sentence would be a miscarriage of justice. However, she did not raise the gender bias issue at the sentencing hearing.

The Tenth Circuit reviewed the actions of the district court for plain error and found none. After sentencing, the district judge commented that he believed both parties were generally involved in domestic violence cases, and that as a mother of two young children she should obey all the laws, referencing Johnson’s repeated minor traffic violations. The Tenth Circuit noted that the remarks occurred after imposition of the sentence, and at best Johnson could only speculate that the remarks influenced her sentencing, which is not enough to show plain error. The judge remarked that he did not hold the domestic violence against Johnson, but that he felt probation was inappropriate based on her misconduct in the traffic violations, for which she would not have been coerced by Diaz.

The Tenth Circuit granted the government’s motion to enforce the appeal waiver. As to Johnson’s motion to seal her opposition to the motion to enforce, the Tenth Circuit instead allowed her to submit for filing a version of the motion with sensitive materials redacted.