United States of America v. Samuel Sanchez, Jr.

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL SANCHEZ, JR.,
Defendant - Appellant.
No. 21-2049
(D.C. No. 1:18-CR-02667-MV-2)
(D. N.M.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, EID, and CARSON, Circuit Judges.
_________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in Samuel Sanchez, Jr.’s plea agreement. We grant the government’s
motion and dismiss the appeal.
Sanchez pled guilty to two counts of distributing 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and two
counts of aiding and abetting, in violation of 18 U.S.C. § 2. Sanchez faced a
mandatory statutory minimum sentence of ten years’ incarceration for these offenses.
See 21 U.S.C. § 841(b)(1)(A). But Sanchez argued to the district court it could
* This order and judgment is not binding precedent, except under the doctrines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.
FILED
United States Court of Appeals
Tenth Circuit
August 25, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-2049 Document: 010110566516 Date Filed: 08/25/2021 Page: 1

-- 1 of 6 --

2
impose a lesser sentence by applying the so-called “safety valve” codified in
18 U.S.C. § 3553(f). This provision instructs district courts to impose the sentence
recommended by the sentencing guidelines without regard for the mandatory
statutory minimum sentence contained in 21 U.S.C. § 841(b)(1)(A) if a defendant
satisfies certain enumerated conditions. The district court held an evidentiary
hearing, found Sanchez did not qualify for safety-valve relief, and sentenced Sanchez
to the mandatory statutory minimum of ten years.
In this appeal Sanchez seeks to (1) challenge the district court’s failure to
apply the safety valve, and (2) raise a claim for ineffective assistance of counsel
during sentencing. But he agreed to a broad waiver of appellate rights in the
following portion of his plea agreement:
The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742 afford a defendant the right to appeal a conviction and the
sentence imposed. Acknowledging that, the Defendant knowingly
waives the right to appeal the Defendant’s conviction(s) and any
sentence, including any fine, at or under the maximum statutory penalty
authorized by law, as well as any sentence imposed below or within the
Guideline range upon a revocation of supervised release in this cause
number. In addition, the Defendant agrees to waive any collateral
attack to the Defendant’s conviction(s) and any sentence, including any
fine, pursuant to 28 U.S.C. §§ 2241, 2255, or any other extraordinary
writ, except on the issue of defense counsel’s ineffective assistance.
Mot., Ex. 1 at 9–10. The government has moved to enforce the appeal waiver in the
plea agreement under United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en
banc) (per curiam).
Under Hahn, we consider “(1) whether the disputed appeal falls within the
scope of the waiver of appellate rights; (2) whether the defendant knowingly and
Appellate Case: 21-2049 Document: 010110566516 Date Filed: 08/25/2021 Page: 2

-- 2 of 6 --

3
voluntarily waived his appellate rights; and (3) whether enforcing the waiver would
result in a miscarriage of justice.” Id. at 1325. The government asserts that all of the
Hahn conditions have been satisfied: (1) Sanchez’s appeal is within the scope of the
appeal waiver because his sentence did not exceed the statutory maximum sentence
of life in prison; (2) he knowingly and voluntarily waived his appellate rights; and
(3) enforcing the waiver would not result in a miscarriage of justice.
Sanchez concedes he knowingly and voluntarily waived his appellate rights
and that enforcing the waiver would not result in a miscarriage of justice. But he
argues his appeal falls outside the scope of the appeal waiver. In making his
argument, Sanchez tacitly concedes—as he must—that the plain language of the
appeal waiver in his plea agreement bars this appeal. Thus, he argues we should look
to statements made by the district court at sentencing encouraging him to appeal its
ruling on the safety-valve issue so that we might narrowly construe the waiver and
conclude it does not bar this appeal. See United States v. Chavez-Salais, 337 F.3d
1170, 1173 (10th Cir. 2003) (“Like most waivers, a defendant’s waiver of his right to
appeal . . . is to be construed narrowly.”).
At the sentencing hearing, the district court explained its reasons for denying
safety-valve relief, expressed the view that defense counsel’s ineffective assistance
may have led to Sanchez’s ineligibility for the safety valve, and then said, “[b]ut here
we are, and I do encourage an appeal on this. I do hope I’m wrong.” Mot., Ex. 3 at 7.
The prosecutor later presented argument and, referring to the district court’s
encouragement of an appeal, pointed out that Sanchez had “waived his appellate
Appellate Case: 21-2049 Document: 010110566516 Date Filed: 08/25/2021 Page: 3

-- 3 of 6 --

4
rights with the exception of an appeal based on ineffective assistance of counsel.” Id.
at 22. Before pronouncing sentence, the court stated it would not repeat its reasons
for denying the safety valve, but said, “I do think that they need to be reviewed on
appeal because I did the best I could with regard to my decision on the safety valve.
I think the only issue may be ineffective assistance . . . .” Id. at 26. Near the end of
the sentencing hearing, the court told Sanchez, “[u]nder the terms of your plea
agreement, you have waived your right to appeal the final sentence of the Court.” Id.
at 70.
“[A]bsent exceptional circumstances, the district court lacks authority to
modify a plea agreement at sentencing.” United States v. Arevalo-Jimenez, 372 F.3d
1204, 1206 (10th Cir. 2004) (internal quotation marks omitted). Sanchez does not
argue “exceptional circumstances” compel us to deviate from our general rule. And
we do not find the circumstances of this case exceptional. Instead, they are much
like those presented in Arevalo-Jimenez, where the district court erroneously stated at
sentencing that the defendant could appeal his sentence “pursuant to the plea
agreement.” Id. (internal quotation marks omitted). We held the district court’s
statement did not modify the plea agreement where the magistrate judge confirmed
the defendant understood the scope of his appeal waiver during the plea colloquy and
the plea agreement stated that it could be modified only by a written document signed
by the defendant and the government.
In his plea agreement, Sanchez stated he “knowingly waive[d] the right to
appeal [his] conviction(s) and sentence, including any fine, at or under the maximum
Appellate Case: 21-2049 Document: 010110566516 Date Filed: 08/25/2021 Page: 4

-- 4 of 6 --

5
statutory penalty authorized by law[.]” Mot., Ex. 1 at 9. The magistrate judge
addressed this appeal waiver with Sanchez before accepting his guilty plea and
Sanchez indicated he “underst[ood] the appellate rights that [he was] giving up as
part of [his] plea agreement.” Id., Ex. 2 at 22. The plea agreement states that “[t]his
document and any addenda are a complete statement of the agreement in this case
and may not be altered unless done so in writing and signed by all parties.” Id., Ex. 1
at 11. And unlike the prosecutor in Arevalo-Jimenez who failed to correct the district
court’s erroneous suggestion at sentencing that the defendant could appeal, the
prosecutor in this case responded to the district court’s suggestion at sentencing that
Sanchez could appeal by reminding the court and Sanchez that he had waived his
right to appeal. In these circumstances, the district court’s statements at sentencing
did not modify the appeal waiver in Sanchez’s plea agreement and his attempt to
appeal the district court’s safety-valve ruling falls within its scope.
Sanchez also wants to raise a claim of ineffective assistance of counsel during
sentencing. But he did not preserve a right to pursue a direct appeal based on
ineffective assistance of counsel. His plea agreement instead preserved his right to
pursue a collateral attack based on ineffective assistance of counsel. This was
proper. “Ineffective assistance of counsel claims should be brought in collateral
proceedings, not on direct appeal. Such claims brought on direct appeal are
presumptively dismissible, and virtually all will be dismissed.” United States v.
Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). To the extent Sanchez
Appellate Case: 21-2049 Document: 010110566516 Date Filed: 08/25/2021 Page: 5

-- 5 of 6 --

6
seeks to bring a claim of ineffective assistance of counsel, he should do so in a
collateral proceeding.
Based on our independent review of the record, we conclude that the Hahn
conditions are satisfied in this case. We therefore grant the government’s motion and
dismiss the appeal. We do so, however, without prejudice to Sanchez’s right to
pursue post-conviction relief on the grounds permitted in his plea agreement.
Entered for the Court
Per Curiam
Appellate Case: 21-2049 Document: 010110566516 Date Filed: 08/25/2021 Page: 6

-- 6 of 6 --