Submitted February 13, 2015.
Appeal from United States District Court for the District of Nebraska - Omaha.
For United States of America, Plaintiff - Appellee: Russell X. Mayer, Assistant U.S. Attorney, U.S. Attorney's Office, District of Nebraska, Omaha, NE.
Hector Tomas Galvez Quebedo, Defendant - Appellant, Pro se, Leavenworth, KS.
For Hector Tomas Galvez Quebedo, Defendant - Appellant: Hector Tomas Galvez Quebedo, Lamson & Dugan, Omaha, NE.
Before RILEY, Chief Judge, LOKEN and SMITH, Circuit Judges.
SMITH, Circuit Judge.
Hector Tomas Galvez Quebedo (" Galvez" ) pleaded guilty pursuant to a Fast-Track plea agreement to illegal reentry following an aggravated-felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). In the plea agreement, Galvez waived the right to appeal his conviction and sentence. Finding that Galvez had previously been deported after a conviction for a felony that was a " crime of violence," the district court applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), calculated an advisory Guidelines range of 37-46 months' imprisonment, and sentenced Galvez to 37 months' imprisonment. On appeal, Galvez argues that (1) the government breached the plea agreement by introducing evidence and argument that he was convicted of a felony crime of violence, and (2) the district court erred in applying the 16-level enhancement under § 2L1.2(b)(1)(A). We conclude that the government did not breach the plea agreement and that, as a result, the appeal waiver is valid and enforceable. Accordingly, we dismiss the appeal.
Galvez was charged in a single-count indictment with illegal reentry following an aggravated-felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). Galvez pleaded guilty pursuant to a Fast-Track plea agreement. See U.S.S.G. § 5K3.1 (" Upon motion of the Government, the
court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides." ); United States v. Jimenez-Perez, 659 F.3d 704, 707 (8th Cir. 2011) (" Since the Commission's incorporation of § 5K3.1 into the Guidelines, the Attorney General has authorized such programs in several districts along the southwest and western borders of the United States, as well as in Nebraska and North Dakota . . . ." (quotation and citation omitted)).
The plea agreement set forth the factual basis for the plea, providing, in relevant part:
5. Defendant is a convicted aggravated felon in that on September 12, 2006, in the Superior Court for the County of Los Angeles, State of California[,] he was sentenced upon conviction for assault with a deadly weapon, an aggravated felony, and sentenced to 365 days in jail.
(Emphasis added.) The factual basis gave no further details about this California conviction, such as whether the sentence was suspended, whether the state court imposed a term of probation, when the state court entered the judgment of conviction, or whether the state court declared the offense a " misdemeanor."
" The parties agree[d] that the facts in the 'factual basis' paragraph of this agreement, if any, are true . . . ." Additionally, " [t]he parties agree[d] that all information known by the office of United States Pretrial Service may be used by the Probation Office in submitting its presentence report, and may be disclosed to the court for purposes of sentencing."
Part V of the plea agreement set forth the parties' sentencing recommendations, providing, in relevant part:
A. Sentencing Guideline Calculations.
Although the parties understand that the Guidelines are advisory and only one of the factors the court will consider under 18 U.S.C. § 3553(a) in imposing a sentence, the parties will jointly recommend the following Base Offense Level, Specific Offense Characteristics, Adjustments and Departures (if applicable). Unless otherwise stated, all agreements as to sentencing issues are made pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B).
1. The parties agree that Base Offense Level 8 applies, pursuant to U.S.S.G. § 2L1.2(a).
2. If the defendant is found to be entitled to an offense level reduction under U.S.S.G. § 3E1.1(a) for acceptance of responsibility, the United States hereby moves that the court reduce the defendant's offense level by one additional level, pursuant to U.S.S.G. § 3E1.1(b), if that paragraph otherwise applies.
3. The parties agree that at the time of sentencing, the United States will make a non-binding recommendation to the court that the defendant should receive a 4[-]level downward departure, pursuant to U.S.S.G. § 5K3.1. For a defendant determined to fall within Criminal History
Category VI or found to have a felony conviction for a " serious violent offense," as determined by the United States after review of the presentence investigation report, the parties agree that the United States will make a non-binding recommendation to the court that the defendant should receive a 2[-] level downward departure.
* * *
C. Adjustments, Departures & Reductions Under 18 U.S.C. § 3553.
The parties agree that defendant may not request or recommend additional downward adjustments, departures, including criminal history departures under U.S.S.G. § 4A1.3, and sentence reductions under 18 U.S.C. § 3553, and that the United States may oppose any such downward adjustments, departures, and sentence reductions not set forth in Section V, paragraph A, above.
D. Criminal History
The parties have no agreement concerning the defendant's Criminal History Category, except that if defendant is determined to be a Career Offender, the parties agree that the defendant is automatically a Criminal History Category VI pursuant to U.S.S.G. § 4B1.1(b).
The plea agreement contained no paragraph similar to ¶ C prohibiting the government from requesting or recommending additional upward adjustments, departures, or variances.
The plea agreement contained an appeal waiver in which Galvez " knowingly and expressly waive[d] any and all rights to appeal [his] conviction and sentence."
After the district court accepted Galvez's guilty plea, the probation office prepared a presentence report (PSR). The revised PSR calculated a base offense level of 8 but then determined that " a sixteen-level increase [was] warranted" to the offense level, explaining:
If an illegal alien found in the U.S. is found to have been convicted of a felony that is a crime of violence, a sixteen-level enhancement is warranted pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). On September 12, 2006, the defendant was sentenced in the Los Angeles (CA) Superior Court (Case #PA057087-01) to three years probation for assault with a deadly weapon. On January 5, 2012, the term of probation was revoked and the defendant was sentenced to three years prison. According to ...