United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 17-3088 September Term, 2019

 FILED ON: SEPTEMBER 18, 2020

UNITED STATES OF AMERICA,

APPELLEE

v.

JULIAN ZAPATA ESPINOZA, ALSO KNOWN AS PIOLIN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cr-00111)

Before: SRINIVASAN, Chief Judge, and ROGERS and PILLARD, Circuit Judges.

J U D G M E N T

The court considered this appeal on the record from the United States District Court for the 

District of Columbia, and the briefs and arguments of the parties. The panel has accorded the 

issues full consideration and has determined that they do not warrant a published opinion. See

D.C. Cir. R. 36(d). It is hereby

ORDERED AND ADJUDGED that the judgment of the district court be AFFIRMED.

Julian Zapata Espinoza, represented by counsel, pled guilty to one count of first-degree 

murder of an officer or employee of the United States, in violation of 18 U.S.C. §§ 1114 and 1111, 

and one count of attempted murder of another officer or employee of the United States, in violation 

of 18 U.S.C. §§ 1114 and 1113. On the first-degree murder count, Zapata Espinoza faced a

statutory minimum sentence of imprisonment for life, 18 U.S.C. § 1111(b), and the parties agreed 

that the appropriate Guideline is also imprisonment for life. Where a defendant renders substantial 

assistance to the government in the investigation or prosecution of another person who has 

committed an offense, section 3553(e) of Title 18 of the United States Code and section 5K1.1 of 

the United States Sentencing Guidelines authorize the court to grant a downward departure from 

a statutory mandatory minimum sentence upon the government’s motion. Confronting a life 

sentence, Zapata Espinoza chose to enter a plea agreement and cooperate with the government. 

Zapata Espinoza’s plea agreement contained a provision waiving his right to appeal his future 

“sentence or the manner in which it was determined,” except to the extent that the sentence 
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exceeded the statutory maximum or departed upward from the applicable Guidelines range.

Zapata Espinoza did in fact render substantial assistance to the government, which 

accordingly filed a motion for downward departure from the Guidelines range. The government 

asked the district court to impose a sentence of thirty-five years in prison for the first-degree 

murder conviction, to run concurrently with Zapata Espinoza’s twenty-year sentence for attempted 

murder. Zapata Espinoza’s own sentencing memorandum requested a sentence of twenty-five

years. Adopting the government’s recommendation, the district court sentenced Zapata Espinoza

to thirty-five years in prison. Zapata Espinoza does not claim—nor could he—that his sentence 

falls outside the appeal waiver as in excess of the statutory maximum or Guidelines range. He 

objects only to the court’s failure to explain why he received a longer sentence than did some of 

his codefendants.

We will generally enforce a “knowing, intelligent, and voluntary” waiver of the right to 

appeal. United States v. Adams, 780 F.3d 1182, 1183 (D.C. Cir. 2015) (citing United States v. 

Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009)). Zapata Espinoza frames his appeal of his belowGuidelines sentence in terms of procedural unreasonableness. Although his arguments against the 

appeal waiver are not entirely clear, he appears to argue either that he reasonably believed that the 

waiver does not apply so cannot be held to have knowingly waived his appeal right here, or that 

the district court’s procedural error was sufficiently fundamental as to be appealable

notwithstanding an otherwise applicable waiver.

Zapata Espinoza contends that he did not knowingly and willingly waive his right to 

appeal a legally inadequate explanation because the plea agreement’s introductory statement

assured him that he would be sentenced according to 18 U.S.C. § 3553(a) and (c) through (f). The

language in the plea agreement on which Zapata Espinoza relies restates the district court’s 

responsibility to follow statutorily prescribed procedures, but, contrary to Zapata Espinoza’s 

contention, that text does not constrict the scope of the appeal waiver. The appeal waiver 

paragraph itself stated that Zapata Espinoza waived the right to appeal not only “the sentence” but

also “the manner in which it was determined,” and retained appeal rights only if (1) the sentence 

exceeded the statutory maximum, or (2) the sentence departed upward from the Guidelines

range—which it concededly did not. We have recognized the very language used in Zapata

Espinoza’s appeal waiver as waiving both procedural and substantive claims on appeal. See 

Adams, 780 F.3d at 1184. 

To the extent that Zapata Espinoza’s argument has a second strand—that, even if the appeal 

waiver applies, the district court’s procedural error was sufficiently serious to void the waiver—it 

fails because we see no error of the requisite gravity. To be sure, we will not enforce an appeal 

waiver at all costs. An otherwise valid appeal waiver does not bar a claim of ineffective assistance 

of counsel in connection with agreeing to the waiver, nor will we enforce it “if the sentencing 

court’s failure in some material way to follow a prescribed sentencing procedure results in a 

miscarriage of justice.” Adams, 780 F.3d. at 1183-84 (quoting Guillen, 561 F.3d at 531). For 

example, an “utter[] fail[ure] to advert to the factors in 18 U.S.C. § 3553(a)” will void the appeal 

waiver’s bar against reviewing that failure. Guillen, 561 F.3d at 531. Likewise, a defendant retains 

the “right to appeal a sentence that is unlawful because it exceeds the statutory maximum” or 
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because it “rest[s] upon a constitutionally impermissible factor, such as the defendant’s race or 

religion.” Id.

Zapata Espinoza, however, does not specifically contend that the sentencing process in this 

case amounted to a miscarriage of justice. Nor does our own review of the record in its entirety 

reveal any error committed here that amounts to a miscarriage of justice requiring nonenforcement 

of the appeal waiver. We note as a matter of general context that Zapata Espinoza’s sentence was 

a substantial downward departure from a mandatory life sentence. Zapata Espinoza was ably 

represented by experienced counsel. Counsel reviewed with him the plea agreement and the 

sentence he could face. Zapata Espinoza and counsel both initialed each page of the plea 

agreement, including the appeal waiver. And Zapata Espinoza confirmed in open court that he 

understood the agreement and had no questions.

The district court largely failed to identify its own reasoning for Zapata Espinoza’s 

sentence. Nonetheless, the court did explain in open court why it “accept[ed]” the justification the 

government spelled out for the sentence, which the court believed appropriately balanced

appreciation of Zapata Espinoza’s investigation assistance against the gravity of his misdeeds, 

including the harm to victims and their families. J.A. 131-32. There is no question that a thirtyfive-year sentence is long, but the acknowledged crime was also indisputably heinous. Under the 

law and in the context of sentences imposed on other defendants for similar crimes, the sentence 

is not “fundamentally unfair.” United States v. Buissereth, 638 F.3d 114, 118 (2d Cir. 2011)

(quoting United States v. Gomez-Perez, 215 F.3d 315, 320 (2d Cir. 2000)).

Zapata Espinoza’s sole objection was the court’s failure to explain why certain 

codefendants received lower sentences and even greater downward departures from the statutory 

and Guideline minimum of life in prison than he did. But, in its sentencing memorandum and 

during allocution at the defendants’ sentencing, the government provided detailed justifications 

for each recommended sentence. See J.A. 48-64, 94-96, 102-105, 109-112. Although the court 

had an obligation to explain its own thinking, where the court said it accepted the government’s 

recommendations and the government explained its grounds for each individual recommendation, 

we see no miscarriage of justice. 

Defendants who did not plead guilty or cooperate with the government’s investigation and 

prosecution were sentenced to life in prison. 11/6/2017 Minute Order, United States v. Garcia 

Soto, No. 13-cr-142 (D.D.C); 11/6/2017 Minute Order, United States v. Quezada Piña, No. 13-cr143 (D.D.C.). As to each of the defendants who pleaded guilty and agreed to cooperate, the 

government’s recommendation accounted for the nature of their participation with the trafficking 

organization, their role in the attack that resulted in one victim’s death and the other’s grievous 

injury, and differences in the extent and usefulness of their cooperation. 

The government recommended a sentence of thirty-five years for Zapata Espinoza, 

explaining that he was a leader in the criminal organization and that he personally instigated the 

deadly attack in order to steal an armored car for use by defendants’ cartel, thus bearing “greater 

responsibility” for the carnage. J.A. 94. The government recommended that Zapata Espinoza 

serve thirty-five years rather than the statutory minimum of life imprisonment because, in the 
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words of the court and confirmed by the government, he served as a “very credible witness” at 

trial and enabled the extradition of other suspects, including an individual the government believed 

to have fired the weapon that killed and injured the agents. J.A. 94-96. The government 

recommended thirty-four years in prison for another defendant who was not a leader or instigator

as Zapata Espinoza was, but had fired directly at the victims in the attack in question, was initially 

“highly cooperative,” yet was not called as a witness at trial because he also provided untruthful 

statements. J.A. 102-105. It recommended twenty-eight years for a defendant who had recently 

affiliated with the traffickers, enabled the shootings by opening the door to the victims’ vehicle,

but was not among the assailants who shot the victims, and proved to be a truthful and valuable 

cooperator for the government. J.A. 109-112. Zapata Espinoza did not dispute the factual 

underpinnings of the government’s recommendations, and in fact thanked the government for 

providing a sentencing “memorandum that was very complete” and that “fully credited [Zapata

Espinoza] for his cooperation.” J.A. 98. 

The district court’s own statements focused on why it accepted the government’s 

recommendations rather than imposing the statutory minimum life sentence; as to the specific 

degrees of leniency, the record shows that the court simply “accept[ed]” the government’s 

explanations without objection from Zapata Espinoza. J.A. 131-32. Again, in view of all the 

circumstances, we cannot conclude that enforcement of the appeal waiver amounts to a miscarriage 

of justice.

We pause to emphasize that, appeal waiver or no, district courts remain obligated to 

sentence in accord with 18 U.S.C. § 3553(a) and (c) and other applicable law. Appeal waivers are 

designed in part to minimize systemic burdens and delays of unnecessary appeals, not to render 

substantive or procedural law inapplicable to the underlying plea bargaining and sentencing. See 

United States v. Woltmann, 610 F.3d 37, 42-43 (2d Cir. 2010) (vacating sentence and remanding 

for re-sentencing before a different district judge where sentencing judge conflated appeal waiver 

with inapplicability of law governing sentencing). Even when appeal is waived, deficiencies in a 

district judge’s explanations of a criminal sentence are problematic. The law requires courts to 

explain the sentences they impose. Explanations of the reasons for a given sentence communicate 

to the public the gravity with which the law and the court—on behalf of the people and with 

appreciation of the victims’ suffering—view the crimes. In explaining the sentence, the judge also

speaks directly to the convicted person on whom he imposes consequences, and he does so for 

perhaps the last time. What the court says at sentencing may affect the propriety of the sentence 

in the defendant’s eyes—in this case, a man who will spend most or all of the rest of his life behind 

bars. Oral and written sentencing explanations also aid the reviewing court which, as this case 

illustrates, may have some work to do even in the face of an appeal waiver. It is essential that, 

along with the key task of deciding and imposing a sentence, the court take the time to spell out 

its reasoning both orally in open court and in a written statement of reasons in compliance with 

applicable law.

* * *

In his reply brief, Zapata Espinoza also contends that the appeal waiver is unenforceable 

because the district court failed during the plea colloquy to inform him of and confirm he 
5

understood the terms of the waiver, in violation of Federal Rule of Criminal Procedure

11(b)(1)(N).

Zapata Espinoza did not object in the district court to the judge’s failure to follow the 

requirements of Rule 11 by orally explaining in the plea colloquy the nature and consequences of 

the appeal waiver. To assure that the choice to waive the appeal right is drawn to the attention of 

the defendant, Rule 11(b)(1)(N) specifically requires that, before a district judge accepts a plea, 

the judge must discuss with the defendant the terms of any appeal waiver and determine that the 

defendant understands them. “[W]e have instructed that ‘courts conducting plea colloquies must 

scrupulously adhere to the obligations of Rule 11.’” United States v. Brown, 892 F.3d 385, 395 

(D.C. Cir. 2018) (quoting United States v. Shemirani, 802 F.3d 1, 3 (D.C. Cir. 2015)). Indeed, 

reflecting the importance we place on adherence to Rule 11, we have also cautioned that “the 

United States Attorney’s Office would be well advised to develop instructions and training for its 

attorneys to make it part of their routine practice to help ensure that district courts fulfill each of 

the requirements of Rule 11, including Rule 11(b)(1)(N).” Shemirani, 802 F.3d at 3. We renew 

that caution here.

There is no dispute the district court failed to “discuss the appeal waiver with [Zapata

Espinoza] during his plea colloquy as required by [Rule] 11(b)(1)(N).” Appellee Br. 18. That 

failure was error. See United States v. Lee, 888 F.3d 503, 506 (D.C. Cir. 2018). When 

accompanied by a showing of potential prejudice, such error may render the appeal waiver 

unenforceable. See United States v. Vonn, 535 U.S. 55, 58-59 (2002); Brown, 892 F.3d at 397; 

Shemirani, 802 F.3d at 3. “[T]o obtain relief for an unpreserved Rule 11 failing,” a defendant 

“must show a reasonable probability that, but for the error, he would not have entered the plea.”

United States v. Dominguez Benitez, 542 U.S. 74, 76, 83 (2004). “[I]n assessing the effect of a 

Rule 11 error, a reviewing court must look to the entire record[.]” Id. at 80.

The district court’s failure to comply with Rule 11(b)(1)(N) does not vitiate the appeal 

waiver here because Zapata Espinoza has not identified any prejudice flowing from that failure, 

nor has he even suggested that, had he known he was giving up his right to appeal procedural 

sentencing error, he would not have pled guilty.

* * *

In sum, any section 3553(c) error on the facts of this case would not fall beyond the scope 

of the appeal waiver, nor has Zapata Espinoza shown that the district court committed procedural 

error that was sufficiently grave as to vitiate the waiver. Zapata Espinoza also has identified no 

prejudice resulting from his unpreserved challenge to the district court’s Rule 11(b)(1)(N) error. 

We hold that the unpreserved Rule 11(b)(1)(N) error is not prejudicial plain error that renders the 

waiver unenforceable.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk

is directed to withhold issuance of the mandate herein until seven days after resolution of any 

timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. 

Cir. R. 41.
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Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

 Daniel J. Reidy

Deputy Clerk