United States of America v. Jimmie Luna, Iii

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JIMMIE LUNA, III,
Defendant - Appellant.
No. 21-5030
(D.C. No. 4:20-CR-00116-JFH-1)
(N.D. Okla.)
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ORDER AND JUDGMENT*
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Before MORITZ, BALDOCK, and EID, Circuit Judges.
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Jimmie Luna pleaded guilty to distributing heroin in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C). Under the plea agreement, Luna waived the right to appeal
his sentence unless it exceeded the statutory maximum of 240 months in prison. The
district court later imposed a 96-month prison term, which Luna now challenges as
substantively unreasonable. In response, the government contends that the appeal
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a);
10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
September 29, 2021
Christopher M. Wolpert
Clerk of Court
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waiver in Luna’s plea agreement bars this argument because Luna’s sentence fell far
below the statutory maximum.
We review the enforceability of an appeal waiver in a plea agreement de novo.
United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir. 2008). Such a
waiver is enforceable if (1) it covers the issue raised on appeal; (2) “the defendant
knowingly and voluntarily waived his [or her] appellate rights”; and (3) enforcing the
waiver will not “result in a miscarriage of justice.” United States v. Hahn, 359 F.3d
1315, 1325 (10th Cir. 2004) (en banc) (per curiam).
All three requirements are satisfied here. First, the waiver covers Luna’s
challenge to the substantive reasonableness of his prison sentence: The plea
agreement permits such a challenge only if the sentence “exceeds the statutory
maximum,” yet Luna’s sentence fell far below that maximum. R. vol. 1, 19. Second,
Luna knowingly and voluntarily waived his appellate rights, as evidenced by the plea
agreement’s language and the district court’s exchange with Luna at the plea hearing.
See Hahn, 359 F.3d at 1325 (assessing whether waiver is knowing and voluntary
based on “language of the plea agreement” and “adequate Federal Rule of Criminal
Procedure 11 colloquy”). And third, none of the circumstances in which enforcing an
appeal waiver may cause a miscarriage of justice exist here. See id. at 1327 (holding
that miscarriage of justice occurs only if “the district court relied on an impermissible
factor such as race,” “ineffective assistance of counsel in connection with the
negotiation of the waiver renders the waiver invalid,” “the sentence exceeds the
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statutory maximum,” or “the waiver is otherwise unlawful” (quoting United States v.
Elliott, 264 F.3d 1171, 1173 (10th Cir. 2001))).
Luna does not dispute this analysis. On the contrary, he recognizes in his reply
brief that all three requirements for enforcing the waiver are met and that “there is no
viable, non[]frivolous basis for opposing the [government’s] request to dismiss the
appeal.” Rep. Br. 3. We therefore dismiss this appeal. See Hahn, 359 F.3d at 1328.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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