*

This order and judgment is not binding precedent except under the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.

FILED

United States Court of Appeals

Tenth Circuit

February 5, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 06-3418

v. (D. Kansas)

MARIO MONDRAGON-AVILEZ,

Defendant - Appellant.

(D.C. No. 02-CR-40114-JAR)

ORDER AND JUDGMENT*

Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.

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.

Pursuant to the terms of a written plea agreement dated May 15, 2003,

defendant-appellant, Mario Mondragon-Avilez pleaded guilty to distributing fifty

grams or more of a mixture or substance containing a detectable amount of
-2-

methamphetamine, in violation of 21 U.S.C. § 841(2)(1). The district court

conducted two sentencing hearings; Mondragon-Avilez testified through an

interpreter at both hearings. On November 24, 2003, Mondragon-Avilez was

sentenced to 262 months’ imprisonment based on an offense level of thirty-seven

and a criminal history category of III.

The plea agreement contained the following waiver of Mondragon-Avilez’s

right to appeal or collaterally attack his conviction or sentence.

Defendant knowingly and voluntarily waives any right to appeal or

collaterally attack any matter in connection with this prosecution and

sentence. The defendant is aware that Title 18, U.S.C. § 3742

affords a defendant the right to appeal the sentence imposed. By

entering into this agreement, the defendant knowingly waives any

right to appeal a sentence imposed which is within the guideline

range determined appropriate by the court. The defendant also

waives any right to challenge a sentence or manner in which it was

determined in any collateral attack, including but not limited to, a

motion brought under Title 28, U.S.C. § 2255, except to the extent

that such a § 2255 claim is deemed unwaivable under the holding of

United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). 

In other words, the defendant waives the right to appeal the sentence

imposed in this case except to the extent, if any, the court departs

upwards from the applicable sentencing guidelines range determined

by the court. However, if the United States exercises its right to

appeal the sentence imposed as authorized by Title 18, U.S.C.

§ 3742(b), the defendant is released from this waiver and may appeal

his sentence as authorized by Title 18, U.S.C. § 3742(a).

Notwithstanding the waiver, Mondragon-Avilez filed a motion pursuant to 28

U.S.C. § 2255, alleging ineffective assistance of counsel and Booker error. See

United States v. Booker, 543 U.S. 220 (2005). The district court denied the

motion on March 31, 2005.
-3-

On July 25, 2006, Mondragon-Avilez filed a motion seeking audiotapes

made by the court reporter during the sentencing hearing held on November 12,

2003. He argued that inaccuracies in the interpreter’s translation of his testimony

may have affected the sentenced imposed by the district court. He sought to

review the tapes to determine whether he should file a successive motion pursuant

to 28 U.S.C. § 2255. The district court denied the motion on several alternative

grounds and Mondragon-Avilez filed a motion seeking reconsideration. That

motion was also denied and this appeal followed.

The Government argues Mondragon-Avilez’s appeal should be dismissed

based on the appeal waiver in the plea agreement. We disagree. This court will

enforce a defendant’s waiver of his right to appeal or collaterally attack his

sentence if (1) the disputed issue falls within the scope of the waiver of appellate

rights, (2) the waiver was knowing and voluntarily, 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). Mondragon-Avilez states his sole purpose for seeking the

audiotapes is to determine whether the district court relied on inaccurately

translated testimony when it calculated his sentence. He asserts the audiotapes

may provide a factual basis for a second or successive § 2255 habeas motion. 

Although Mondragon-Avilez expressly waived his right to appeal or collaterally

attack any sentence imposed by the district court, or the manner in which it was

calculated, his motion seeks to do none of those things. Thus, it is not within the
-4-

scope of the waiver. To the extent the district court dismissed his motion on this

basis, that decision was erroneous. Nevertheless, we can affirm the district

court’s ruling. See Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994) (holding

the appellate court “may affirm on any grounds supported by the record”).

Although his original motion is less than clear on this point, the relief

Mondragon-Avilez seeks is to have the court reporter’s backup audiotapes placed

in the record pursuant to 28 U.S.C. § 753(b) and the applicable regulations

enacted by the Judicial Conference of the United States. See 6 Guide to Judiciary

Policies and Procedures § 16.5.4 (Court Reporters Manual) (Jan. 1998). 

Mondragon-Avilez can only obtain that relief, if at all, through a writ of

mandamus. Because his motion cannot be construed as a petition for writ of

mandamus, it was proper to dismiss it.

Affirmed.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge