# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT



## No. 17

- 3088 September Term, 2019

F ILED O N : SEPTEMBER 18
, 2020 U

NITED S TATES OF A MERICA , A PPELLEE

v.

J ULIAN Z APATA E SPINOZA , ALSO KNOWN AS P IOLIN , A PPELLANT

Appeal from the United States District Court for the District of Columbia (No. 1:11

- cr

- 00111)

Before: S RINIVASAN , Chief Judge , and R OGERS and P ILLARD , 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 warran t a published opinion. See D.C. Cir. R. 36(d). It is hereby

O RDERED 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 an other 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 sentence2 exceeded the statutory maximum or departed upward from the applicable Guideline s range

. Zapata Espinoza did in fact render substantial assistan ce to the government

, which accordingly filed a motion for downward departure from the Guideline s range. The government ask ed the district court to impose a sentence of thirty

- five years in prison for the first

- degree murder conviction , to run concurrentl y 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, t he 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 exce ss of the statutory maximum or Guidelines range. He objects only to the court’s failure to explain why he received a long er 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, 52 9 (D.C. Cir. 2009))

. Zapata Espinoza frames his appeal of his below

Guidelines sentence in terms of procedural un reasonableness . Although his argument s 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 notwithstan ding 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

ass ured 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

, b ut , 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 waive d the right to appeal not only “ the sentence ” but also “the manner in which it was determined,” and ret ained appeal rights only if (1) the se ntence exceed ed the statutory maximum

, or (2) the sentence depart ed upward from the Guideline s range

— which it concededly did not

. We have recognized th e 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 wa s 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

, n or 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 ( quo ting 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” or3 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 her e that amount s to a miscarriage of justice requiring nonenforcement of the appeal wa iver

. 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 a nd 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 question s.

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 balanc ed 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 thirty

five

- year sentence is l ong , but the acknowledged crime was also indisputably heinous . U nder the law and in the context of sentences imposed on other defendants for similar crimes, the sentence is not “fundamentally unfair.” United States v. Bu issereth , 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 s aid 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

- cr

143 (D.D.C.). As to each of the defendants who pleaded guilty and agreed to cooperate, t he government ’s recommendatio n accounted for the nature of the ir 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 the ir 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 instigat ed the deadly attack in order to steal an armored car for use by defendants’ cartel, thus bearing “greater responsibility” f or the carnage. J.A. 94. T he government recommended that Zapata Espinoza

serve thirty

- five years rather than the statutory minimum of life imprisonment because , in the4 words of the court and confirmed by the government, he served as a “very credible witn ess” 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 a nother defen dant 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 open ing the door to the vi ctims’ 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.

T he district cour t’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 explanatio n s without objection from Zapata Espinoza

. J.A. 131

- 32. Again, i n view of all the circumstances, we cannot conclude that enforcement of the a ppeal waiver amounts to a miscarriage of justice.

We pause to emphasize that, appeal waiver or no, district court s 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 l aw 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, d eficiencies 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
spe aks 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 a ll of the rest of his life behind bars

. Oral and written sentencing explanations also aid the reviewing court which, as this case illustrates, may ha ve 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 writ ten statement of reasons in compliance with applicable law

.
* * *

In his reply brief, Zapata Espinoza also contends that the ap peal waiver is unenforceable because the district court failed during the plea colloquy to inform him of and confirm he5 understood the terms of the waiver , in violation of Fed eral R ule of Cr im inal P rocedure 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 t he attention of the defendant, Rule 11(b)(1)(N) specifically requires that, before a district judge accept s 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 inst ructed that ‘ c ourts 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) . W hen accompanied by a showing of potential prej udice, 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 reason able 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 no t identified any prejudice flowing from that failure

, nor has he even suggested that , had he known he was giving up h is 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

. W e 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 F ed . R. A pp . P. 41(b); D.C. C ir . R. 41.6 

### Per Curiam

FOR THE COURT: Mark J. Langer, Clerk

BY: /s/ Daniel J. Reidy Deputy Clerk