Filed: Patrick Fisher

F I L E D
United States Court of Appeals

Tenth Circuit
PUBLISH
OCT 31 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 99-8101
JAIME RUBIO,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 98-CR-148-05-B)
Submitted on the Briefs:
David D. Freudenthal, United States Attorney, David A. Kubichek, Assistant United
States Attorney, Casper, Wyoming, for Plaintiff-Appellee.
Terry J. Harris, Terry J. Harris, P.C., Cheyenne, Wyoming, for Defendant-Appellant.
Before BALDOCK, ANDERSON, and BRORBY, Circuit Judges.*
BALDOCK, Circuit Judge.
After examining the briefs and appellate record, 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.
*
I.
A grand jury indicted Defendant Jaime Rubio on several drug-related counts.
Count 1 of the indictment charged Defendant with conspiracy to traffic in
methamphetamine in violation of 21 U.S.C. 841(a)(1) and 846. Pursuant to a plea
agreement in which he waived the right to appeal his sentence, Defendant pled guilty to
Count 1. The plea agreement states in relevant part: The Defendant agrees to waive his
right to appeal the sentence he receives as a result of this Plea Agreement. However, if
the United States appeals the Defendants sentence pursuant to 18 U.S.C. 3742(B), the
Defendant is released from his waiver.
At sentencing, Defendant requested a downward adjustment pursuant to U.S.S.G.
3B1.2 (1998) for a mitigating role in the conspiracy. The district court refused to grant
a downward departure based on our decision in United States v. James, 157 F.3d 1218
(10th Cir. 2000) (holding that where defendants base offense level was calculated using
only the amount of drugs directly attributable to him, he was not entitled to a two-level
downward adjustment as a minor participant under 3B1.2). The court stated: I think
that reading James I must apply it, and under that doctrine, you have no hope of getting a
minimal role.
The district court ultimately sentenced Defendant to fifty-seven months in prison,
but encouraged Defendant to appeal due to the harshness of the James doctrine. In an
attempt to allow Defendant to appeal despite the waiver in the plea agreement, the
2
district court included in the judgment a statement that the defendants waiver of his
right to appeal is hereby rescinded. Defendant now appeals the district courts refusal to
grant a downward adjustment pursuant to U.S.S.G. 3B1.2. Because we conclude the
Defendant knowingly and voluntarily waived his right to appeal, the waiver effectively
deprives us of jurisdiction. Accordingly, we dismiss the appeal.
II.
The Government argues Defendants waiver of the right to appeal contained in the
plea agreement precludes this challenge.1 If Defendants waiver is effective, we would
certainly overreach our jurisdiction to entertain this appeal when the plea agreement
deprived Defendant of the right to appeal. See United States v. Vences, 169 F.3d 611,
613 (9th Cir. 1999). We do, however, have jurisdiction to determine our jurisdiction. See
United States v. Garcia, 919 F.2d 1478, 1479 (10th Cir. 1990). To avoid dismissal of his
appeal, Defendant must show why we should not enforce the waiver provision of the plea
The Government initially raised this argument in a motion to dismiss pursuant to

10th Cir. R. 27.2(A)(1)(a). Defendant argues the motion is an improper collateral attack
on the district courts judgment because the Government failed to appeal the judges
attempt to remove the waiver provision from the plea agreement. Although the motion
was untimely, we cannot ignore the jurisdictional issue because we have an independent
obligation to examine our subject matter jurisdiction. See Maier v. United States Envtl.
Protection Agency, 114 F.3d 1032, 1036 (10th Cir. 1997). The Government may properly
argue the waiver provision is a complete bar to Defendants appeal, deprives us of
jurisdiction, and requires dismissal. Cf. United States v. Black, 201 F.3d 1296 (10th Cir.
2000) (Government did not appeal the courts attempt to remove the waiver provision
from the plea agreement, waiting instead until filing its response brief on the merits to
raise the issue).
1
agreement.
Defendant contends the district court negated the waiver provision by rescinding it
from the plea agreement at the sentencing hearing. Our recent decision in United States
v. Black, 201 F.3d 1296 (10th Cir. 2000), controls this issue. In Black, the defendant
entered into a plea agreement with the government containing a provision nearly identical
to the one in this case, waiving his right to appeal. Prior to sentencing, the defendant
filed a motion to withdraw his guilty plea. The district court denied defendants motion,
but at the conclusion of the sentencing hearing told the defendant it was striking the
waiver provision from the plea agreement to allow an appeal. The defendant then
attempted to appeal the denial of his motion to withdraw the guilty plea.
On appeal, we held the waiver of the right to appeal was enforceable and
precluded the defendants appeal concerning his motion to withdraw his guilty plea. Id.
at 1303. Although we decided Black subsequent to the district courts action in this case,
Black makes clear that absent exceptional circumstances, the district court lacks authority
to modify a plea agreement at sentencing. Id. at 1302; see also United States v. Dean, 80
F.3d 1535, 1539 (11th Cir. 1996).
In Black, we determined the district courts actions at sentencing could not have
affected [Defendants] prior decision to enter into a plea agreement and waive his right to
appeal. Id. A defendants knowing and voluntary waiver of the statutory right to
appeal his sentence is generally enforceable. Id. at 1300 (quoting United States v.
4
Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1998)). In this case, the district court accepted
the plea agreement at Defendants change of plea hearing, therefore, as long as Defendant
entered into the plea agreement knowingly and voluntarily, the provision waiving the
right to appeal is enforceable.
We review the question of whether the plea was knowing and voluntary de novo.
Id. Defendant argues his assent to the plea agreement cannot be deemed knowing and
voluntary because the complex nature of the legal issues involved prevented his full
understanding of the implications associated with the plea agreement. Specifically,
Defendant argues he entered into the plea agreement without realizing the district court
would deny his request for a 3B1.2 downward adjustment based on our decision in
United States v. James, 257 F.3d 1218 (10th Cir. 1998). This argument is not persuasive.
James, decided in 1998, was existing law both when Defendant entered his guilty plea
and when he was sentenced.
The record reveals the district court conducted a thorough inquiry at the change of
plea hearing, during which Defendant stated he understood the nature of the rights he was
waiving and the charges against him; was pleading guilty of his own free will; and the
plea agreement contained all the terms of the agreement with the Government. Although
the district court did not specifically discuss the waiver provision during the change of
plea hearing, if the record as a whole establishes that the defendants waiver of appellate
review was knowing and voluntary, there is no requirement that the district court itself
5
specifically address the waiver provision in a colloquy with the defendant. Black, 201
F.3d at 1301. Nothing in the record indicates Defendants decision to enter into the plea
agreement was other than knowing and voluntary. Therefore, a valid plea agreement
exists and Defendant is bound by its terms.
III.
Defendant also argues the lack of a definitive sentence or sentencing range in the
plea agreement renders the agreement invalid. The plea agreement is unclear on its face
whether the parties intended it to fall under Fed. R. Crim. P. Rule 11(e)(1)(B) or
11(e)(1)(C), and neither Defendant nor the Government addresses this particular point in
their briefs. Rule 11(e)(1)(B) allows the government to recommend, or agree not to
oppose the defendants request for a particular sentence or sentencing range, or that a
particular provision of the Sentencing Guidelines, or policy statement, or sentencing
factor is or is not applicable to the case. Any such recommendation or request is not
binding on the court. Rule 11(e)(1)(C), by contrast, is binding on the court once
accepted and requires the government to agree that a specific sentence or sentencing
range is the appropriate disposition of the case, or that a particular provision of the
Sentencing Guidelines, or policy statement or sentencing factor is or is not applicable to
the case.
We construe this particular agreement as falling under Rule 11(e)(1)(B) because
the plea agreement specifies the judge is not a party to this Agreement and is free to
6
impose whatever sentence he determines to be justified . . . . In addition, the

Government merely agreed to recommend a reduction for acceptance of responsibility
and a downward departure under the safety valve provisions of the Sentencing
Guidelines. Rule 11(e)(1)(B) does not require a specific sentence or sentencing range be
included as part of the plea agreement and, therefore, Defendants argument fails.2
Under the terms of the written plea agreement, Defendant knowingly and
voluntarily waived his right to pursue this appeal. Therefore, the appeal is DISMISSED.
Even if we construed the plea agreement pursuant to Rule 11(e)(1)(C), the

agreement stipulated the drug quantity upon which Defendants sentence would be
calculated (350 to 500 grams of methamphetamine). In addition, the plea agreement
contemplates a three offense level reduction for acceptance of responsibility under
U.S.S.G. 3E1.1 and a two offense level safety valve reduction under U.S.S.G.
5C1.2. Defendants ultimate sentence was consistent with this agreement. Therefore,
the plea agreement did provide Defendant with an anticipated sentencing range and we
would still hold Defendant to its terms.
2

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F I L E D

United States Court of Appeals

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

The Government initially raised this argument in a motion to dismiss pursuant to

impose whatever sentence he determines to be justified . . . . In addition, the

Even if we construed the plea agreement pursuant to Rule 11(e)(1)(C), the

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