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    United States v. Torres-Campos, 10th Cir. (2010)

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    The United States Court of Appeals for the Tenth Circuit granted the government's motion to enforce Mario Torres-Campos's appeal waiver and dismiss his appeal. Torres-Campos pled guilty to illegal reentry and waived his right to appeal under a plea agreement. The court found that the appeal fell within the scope of the waiver, that Torres-Campos knowingly and voluntarily waived his appellate rights, and that enforcing the waiver would not result in a miscarriage of justice. The court rejected Torres-Campos's jurisdictional arguments as meritless and found no evidence that his counsel was ineffective regarding the appeal waiver.

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    United States v. Torres-Campos, 10th Cir. (2010)

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    The United States Court of Appeals for the Tenth Circuit granted the government's motion to enforce Mario Torres-Campos's appeal waiver and dismiss his appeal. Torres-Campos pled guilty to illegal reentry and waived his right to appeal under a plea agreement. The court found that the appeal fell within the scope of the waiver, that Torres-Campos knowingly and voluntarily waived his appellate rights, and that enforcing the waiver would not result in a miscarriage of justice. The court rejected Torres-Campos's jurisdictional arguments as meritless and found no evidence that his counsel was ineffective regarding the appeal waiver.

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    Filed: 2010-04-19 Precedential Status: Non-Precedential Docket: 09-2311

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    The United States Court of Appeals for the Tenth Circuit granted the government's motion to enforce Mario Torres-Campos's appeal waiver and dismiss his appeal. Torres-Campos pled guilty to illegal reentry and waived his right to appeal under a plea agreement. The court found that the appeal fell within the scope of the waiver, that Torres-Campos knowingly and voluntarily waived his appellate rights, and that enforcing the waiver would not result in a miscarriage of justice. The court rejected Torres-Campos's jurisdictional arguments as meritless and found no evidence that his counsel was ineffective regarding the appeal waiver.

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    38 views5 pages

    United States v. Torres-Campos, 10th Cir. (2010)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit granted the government's motion to enforce Mario Torres-Campos's appeal waiver and dismiss his appeal. Torres-Campos pled guilty to illegal reentry and waived his right to appeal under a plea agreement. The court found that the appeal fell within the scope of the waiver, that Torres-Campos knowingly and voluntarily waived his appellate rights, and that enforcing the waiver would not result in a miscarriage of justice. The court rejected Torres-Campos's jurisdictional arguments as meritless and found no evidence that his counsel was ineffective regarding the appeal waiver.

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    of 5

    FILED

    United States Court of Appeals


    Tenth Circuit

    April 19, 2010


    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    FOR THE TENTH CIRCUIT

    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    MARIO TORRES-CAMPOS,

    No. 09-2311
    (D.C. No. 2:09-CR-02386-JAP-1)
    (D. N.M.)

    Defendant-Appellant.

    ORDER AND JUDGMENT *

    Before BRISCOE, EBEL, and TYMKOVICH, Circuit Judges.

    Mario Torres-Campos pled guilty to being an alien who illegally re-entered


    the United States after having been deported after conviction of a felony in
    violation of 8 U.S.C. 1326(a) and (b). 1 Under the terms of his plea agreement,
    he waived his right to appeal his conviction and any sentence within the

    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. 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.
    1

    The sentencing transcript indicates that Mr. Torres-Campos has four felony
    and twenty misdemeanor convictions, has a prior illegal reentry conviction, and
    has been deported four times.

    applicable advisory guidelines range determined by the district court. The court
    imposed a sentence of twenty-one months of imprisonment, which was at the
    bottom of the undisputed guidelines range of twenty-one to twenty-seven months.
    Despite the appeal waiver in the plea agreement, Mr. Torres-Campos appealed.
    The government has moved to enforce the appeal waiver under United States v.
    Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). For the reasons
    stated below, we grant the motion and dismiss the appeal.
    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
    voluntarily waived his appellate rights; and (3) whether enforcing the waiver
    would result in a miscarriage of justice. Id. at 1325. The miscarriage-of-justice
    prong requires the defendant to show that (a) the district court relied on an
    impermissible factor such as race; (b) ineffective assistance of counsel in
    connection with the negotiation of the waiver render[ed] the waiver invalid;
    (c) his sentence exceed[ed] the statutory maximum; or (d) his appeal waiver is
    otherwise unlawful. Id. at 1327 (quotations omitted). The governments motion
    addresses all three prongs of the Hahn test, and explains why Mr. Torres-Campos
    appeal waiver is not undermined.
    In response to the governments motion, Mr. Torres-Camposs counsel
    stated that under Anders v. California, 386 U.S. 738 (1967), this appeal is
    frivolous. We provided Mr. Torres-Campos copies of the governments motion to
    -2-

    enforce and counsels response and gave him the opportunity to argue why this
    appeal should be heard despite his appeal waiver. In his response, which we
    liberally construe, see Haines v. Kerner, 404 U.S. 519, 520 (1972), he makes
    several jurisdictional arguments: (1) he is not subject to the law because he is not
    a United States citizen; (2) under the Treaty of Guadalupe Hidalgo and the
    Gadsden Purchase Treaty, the district court lacked jurisdiction; (3) the district
    court lacked subject matter jurisdiction; and (4) the government has not filed an
    acceptance of jurisdiction as is required by the Assimilated Crimes Act. He also
    contends that counsel promised to file an appeal.
    Although a guilty plea does not waive jurisdictional objections to a
    conviction, United States v. Fields, 516 F.3d 923, 928 (10th Cir. 2008), we can
    easily conclude that the jurisdictional arguments Mr. Torres-Campos raises are
    meritless. Congress has plenary power to pass laws controlling the admission and
    exclusion of aliens. See Kleindienst v. Mandel, 408 U.S. 753, 765-67 (1972).
    That power includes the power to pass criminal laws imposing penalties upon
    persons who enter the United States unlawfully. See United States v.
    Hernandez-Guerrero, 147 F.3d 1075, 1076-78 (9th Cir. 1998) (holding Congress
    did not exceed its constitutional authority in enacting 1326). Further, the
    district court has subject-matter jurisdiction over all offenses against the laws of
    the United States under 18 U.S.C. 3231, including the offense at issue in this
    case. As Mr. Torres-Campos himself recognizes, the Treaty of Guadalupe
    -3-

    Hidalgo of 1848 involved land ceded by Mexico to the United States. See, e.g.,
    New Mexico v. Aamodt, 537 F.2d 1102, 1105 (10th Cir. 1976); United States v.
    Gardner, 107 F.3d 1314, 1317 (9th Cir. 1997). This treaty and the Gadsden
    Purchase Treaty of 1853 guaranteed that the United States would respect property
    rights of Mexicans located within the ceded land. See Tee-Hit-Ton Indians v.
    United States, 348 U.S. 272, 288 n.20 (1955). Neither, however, concerns
    federal-court jurisdiction over criminal charges against aliens. Because
    Mr. Torres-Campos was not convicted under the Assimilated Crimes Act, that Act
    is irrelevant to the question of jurisdiction.
    Mr. Torres-Campos may be arguing that his counsel was ineffective for not
    filing an appeal. But counsel did file the appeal. Based upon our review of the
    transcripts of the plea and sentencing hearings and the plea agreement,
    Mr. Torres-Campos has not met his burden of showing ineffective assistance of
    counsel in connection with the negotiation of the appeal waiver or otherwise
    demonstrated that the waiver is invalid. See Hahn, 359 F.3d at 1327. Not only is
    Mr. Torres-Camposs objection about his counsels performance insufficient to
    demonstrate a miscarriage of justice in general, to the extent that his objection
    survives his plea waiver at all, it would not be a basis for an appeal, but rather
    only for a possible motion for collateral review under 28 U.S.C. 2255. See
    United States v. Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005) (holding

    -4-

    that claims of ineffective assistance of counsel should be brought in collateral


    proceedings, and not on direct appeal).
    The governments motion to enforce the appeal waiver is GRANTED, and
    the appeal is DISMISSED.

    ENTERED FOR THE COURT


    PER CURIAM

    -5-

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