United States of America v. Jorge Alberto Rivas

United States Court of Appeals
For the Eighth Circuit
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No. 22-2418
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Jorge Alberto Rivas,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the District of Minnesota
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Submitted: March 17, 2023
Filed: June 16, 2023
[Unpublished]
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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
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PER CURIAM.
After signing a plea agreement, Jorge Rivas pleaded guilty to unlawful reentry
after removal, subsequent to a conviction for an aggravated felony. See 8 U.S.C.
§ 1326(a), (b)(2); 6 U.S.C. §§ 202, 557. According to the plea agreement, the parties
expected an advisory guideline range of 15 to 21 months’ imprisonment. The district

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court* calculated that range, and imposed a term of 15 months’ imprisonment and a
three-year term of supervised release.
On appeal, Rivas argues that the district court erred in imposing a term of
supervised release. He relies on USSG § 5D1.1(c), which recommends that a court
“ordinarily” should not impose a term of supervised release when the defendant is a
deportable alien. The government has moved to dismiss Rivas’s appeal on the ground
that he waived his right to appeal.
A defendant may waive his right to appeal in a plea agreement. United States
v. Andis, 333 F.3d 886, 889 (8th Cir. 2003) (en banc). As long as there is no
miscarriage of justice, we will enforce a defendant’s waiver if he made a knowing and
voluntary waiver, and the appeal falls within the scope of the waiver. United States
v. Seizys, 864 F.3d 930, 931 (8th Cir. 2017).
Rivas’s plea agreement includes the following waiver: “The defendant hereby
waives the right to appeal any non-jurisdictional issues,” including “the right to
appeal guilt or innocence, sentence, and the constitutionality of the statutes to which
the defendant is pleading guilty.” The parties agreed that “excluded from the waiver”
was “an appeal by defendant of the substantive reasonableness of a term of
imprisonment above 21 months of imprisonment, and an appeal by the government
of the substantive reasonableness of a term below 15 months of imprisonment.”
Rivas does not challenge the substantive reasonableness of his term of imprisonment,
so his appeal falls within the scope of the waiver.
Rivas argues nonetheless that the appeal is outside of the scope of the waiver.
The parties, he notes, did not waive their right to appeal a term of imprisonment
*The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
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outside the anticipated advisory guideline range. Rivas maintains that because the
advisory guidelines recommend that a court “ordinarily” should not impose a term of
supervised release, his appeal regarding supervised release is also outside the scope
of the waiver. The agreement, however, allows only an appeal to challenge a term of
imprisonment that is outside the advisory guideline range. There was no exception
concerning a term of supervised release. Rivas’s appeal is thus barred by the waiver
of his right to appeal “any non-jurisdictional issues.”
Rivas next argues that a statement by the government at the change-of-plea
hearing created ambiguity about the scope of the appeal waiver. At the hearing, in
explaining the waiver provision, the attorney for the government said the following:
“if the Court imposes a sentence within the guidelines as the parties have calculated
it, then there will be no appeal outside of ineffective assistance.” Rivas contends that
this reference to a “sentence within the guidelines” encompasses both a term of
imprisonment and a term of supervised release. He suggests that a negative
implication of the statement is that an appeal would be permitted if the court were to
impose a term of supervised release contrary to the recommendation of the guidelines.
This argument takes the prosecutor’s statement out of context. The full
statement makes clear that the exception to waiver is limited to an appeal challenging
a term of imprisonment:
And excluded from the waiver will be an appeal of the substantive
reasonableness of a term by the defendant of above 21 months of
imprisonment and by the government of below 15 months of
imprisonment, which is to say that if the Court imposes a sentence
within the guidelines as the parties have calculated it, then there will be
no appeal outside of ineffective assistance.
R. Doc. 55, at 6 (emphasis added). There is no ambiguity, and Rivas does not
otherwise dispute that he made a knowing and voluntary waiver.
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For these reasons, we grant the government’s motion to dismiss the appeal
based on Rivas’s waiver of rights in the plea agreement.
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