FILED

United States Court of Appeals

Tenth Circuit

March 11, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSE LUIS RODRIGUEZ-RIVERA,

Defendant - Appellant,

No. 06-3386

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D. Ct. No. 04-CR-20091-CM)

Robert G. Levitt, Denver, Colorado, appearing for Appellant.

James A. Brown, Assistant United States Attorney (Eric F. Melgren, United States

Attorney, with him on the brief), Office of the United States Attorney for the

District of Kansas, Topeka, Kansas, appearing for Appellee.

Before TACHA, ANDERSON, and GORSUCH, Circuit Judges.

TACHA, Circuit Judge.

Pursuant to a plea agreement, Defendant-Appellant Jose Luis RodriguezRivera pleaded guilty to possession with intent to distribute five kilograms or

more of a mixture containing cocaine in violation of 21 U.S.C. § 841(a)(1) and
-2-

(b)(1)(A)(ii). Mr. Rodriguez-Rivera appeals the 235-month sentence imposed by

the District Court, and the Government has moved this Court to enforce a

provision in the plea agreement waiving his right to appeal. We exercise

jurisdiction under 28 U.S.C. § 1291, GRANT the motion to enforce, and

DISMISS Mr. Rodriguez-Rivera’s appeal.

I. BACKGROUND

On June 23, 2004, Mr. Rodriguez-Rivera was indicted for conspiracy to

distribute 500 grams or more of a mixture containing cocaine, see 21 U.S.C.

§ 841(a)(1) and (b)(1)(B)(ii), and possession with intent to distribute five

kilograms or more of a mixture containing cocaine, see 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(ii). Mr. Rodriguez-Rivera and the Government entered into a plea

agreement whereby Mr. Rodriguez-Rivera agreed to plead guilty to the possession

charge and the Government agreed to dismiss the conspiracy charge. 

The factual basis for the guilty plea, as set forth in the plea agreement,

describes the amount of cocaine discovered in Mr. Rodriguez-Rivera’s

possession: 4.739 kilograms were located in his car, and another 998 grams were

located in his house. The agreement specifically provides for the application of

the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) and states

that “the defendant understand[s] that the conduct charged in any dismissed

counts of the indictment is to be considered as well as all other uncharged related

criminal activities as relevant conduct for purposes of calculating the offense
1

It appears that this is a miscalculation; 4.739 kilograms plus 998 grams

yields 5.737 kilograms. The error, however, does not affect this appeal.

-3-

level.” In addition, the Government agreed to move for a three-level reduction

for acceptance of responsibility, see U.S.S.G. § 3E1.1, contingent on Mr.

Rodriguez-Rivera’s continuing manifestation of acceptance of responsibility. 

Notably, the agreement provides that, if Mr. Rodriguez-Rivera falsely contests

relevant conduct or attempts to obstruct justice, the Government may withdraw its

recommendation for the reduction without breaching the plea agreement. 

Pursuant to the agreement, the Government also agreed to provide all information

relevant to sentencing to the United States Probation Office and the District Court

and to request a sentence at the low end of the Guidelines range as calculated by

the District Court. And as part of the agreement, Mr. Rodriguez-Rivera waived

direct and collateral review of any sentence within the applicable range

determined by the court.

The United States Probation Office then prepared a presentence report

(“PSR”). Based on the total amount of cocaine discovered in his car and his

home, the PSR attributed 5.728 kilograms of cocaine to Mr. Rodriguez-Rivera.1

This resulted in a base offense level of 32. See U.S.S.G. § 2D1.1. The PSR then

recommended a two-level enhancement based on the probation office’s finding

that Mr. Rodriguez-Rivera was a leader or supervisor in the crime. See U.S.S.G.

§ 3B1.1(c). After subtracting three levels for acceptance of responsibility, see
2

This PSR is not in the record on appeal, but it is clear from the parties’

objections and descriptions of the PSR that this summary is accurate.

3

U.S.S.G. § 5C1.2 allows a sentencing court to impose a sentence without

regard to any statutory minimum sentence if the court finds that the defendant

meets five criteria set forth in that section. 

4

U.S.S.G. § 3B1.2(b) allows a sentencing court to reduce a defendant’s

offense level by two levels if the court finds that the defendant played a minor

role in the offense.

-4-

U.S.S.G. § 3E1.1, the PSR recommended a total offense level of 31. With a

criminal history category of I, the resulting Guidelines range was 108 to 135

months’ imprisonment.2

Mr. Rodriguez-Rivera objected to the PSR, arguing that he was not a leader

or supervisor under § 3B1.1(c). In a separate filing, he sought both “safetyvalve” relief under U.S.S.G. § 5C1.2,3

 which requires that the defendant was not a

“supervisor of others in the offense,” as well as a “minor-role” reduction under

U.S.S.G. § 3B1.2(b).4

 This filing included an affidavit from Mr. RodriguezRivera in which he attested that, contrary to the testimony of his co-defendant and

the evidence in the case, he (Mr. Rodriguez-Rivera) had only been involved in

drug trafficking for a very short time and with only small amounts of cocaine. 

The Government disagreed with the PSR’s finding of drug quantity,

asserting that a total of 65.728 kilograms of cocaine—with a corresponding base

offense level of 36—was attributable to Mr. Rodriguez-Rivera as relevant

conduct. The Government based its calculation on statements from Mr.
-5-

Rodriguez-Rivera’s wife, who told investigators that Mr. Rodriguez-Rivera had

received shipments of drugs on a weekly or bi-weekly basis, as well as the

discovery of several coolers and packing materials in Mr. Rodriguez-Rivera’s

home. Because the Government’s evidence contradicted the statements in Mr.

Rodriguez-Rivera’s affidavit, the Government argued that the PSR properly

recommended an enhancement for a supervisory or leadership role and that Mr.

Rodriguez-Rivera’s requests for safety-valve relief and a minor-role reduction

were unfounded. The Government also asserted that, because Mr. RodriguezRivera had given false information in this affidavit, he was not entitled to a

reduction for acceptance of responsibility and should be given a two-level

increase if the court found he had obstructed justice. See U.S.S.G. § 3C1.1. 

The PSR was amended. The revised version largely reflected the

Government’s position, although it did not recommend an obstruction-of-justice

enhancement. With a base offense level of 36 under § 2D1.1, a two-level

supervisory-role enhancement under § 3B1.1(c), and no credit for acceptance of

responsibility, the total offense level was 38. The recommended range was 235 to

293 months, and after the sentencing hearing, the court sentenced Mr. RodriguezRivera to 235 months.

 Mr. Rodriguez-Rivera appeals, arguing that the Government breached the

plea agreement and engaged in prosecutorial misconduct by making the

sentencing recommendations noted above. He also argues that his sentence is
5

Unpublished decisions from this Court hold likewise. See United States v.

Tilgham, 211 Fed. Appx. 778, 781 (10th Cir. Jan. 9, 2007); United States v.

Young, 206 Fed. Appx. 779, 782, 784 (10th Cir. Nov. 28, 2006). 

-6-

unreasonable. The Government contests these claims and also maintains that they

are barred by the appellate-waiver provision contained in the plea agreement.

II. DISCUSSION

A. Alleged Breach of the Plea Agreement

Because an appellate waiver is not enforceable if the Government breaches

its obligations under the plea agreement, United States v. Schwartz, 511 F.3d 403,

405 (3d Cir. 2008),5

 we must first address whether the Government’s conduct

during sentencing constituted a breach. We review de novo whether the

Government has breached a plea agreement. United States v. VanDam, 493 F.3d

1194, 1199 (10th Cir. 2007). In interpreting a plea agreement, we rely on general

principles of contract law, United States v. Cachucha, 484 F.3d 1266, 1270 (10th

Cir. 2007), and therefore “look to the express language in the agreement to

identify both the nature of the government’s promise and the defendant’s

reasonable understanding of this promise at the time of the entry of the guilty

plea,” VanDam, 493 F.3d at 1199. We construe any ambiguities against the

government as the drafter of the agreement. Cachucha, 484 F.3d at 1270.

In this case, the plea agreement specifically states that relevant conduct

will be used to calculate Mr. Rodriguz-Rivera’s sentence, and the agreement

describes relevant conduct as “conduct charged in any dismissed counts of the
-7-

indictment,” as well as “all other uncharged related criminal activities.” In

addition, the agreement expressly requires the Government to “provide to the

court and the United States Probation Office all information it deems relevant to

determining the appropriate sentence in this case.” (emphasis added). The same

provision also permits the Government “to respond to comments made or

positions taken by [Mr. Rodriguez-Rivera]” and “to make any recommendations it

deems appropriate regarding the disposition of the case,” so long as the

recommendations are not contrary to the agreement. Although the Government

also agreed to recommend a reduction based on acceptance of responsibility, this

agreement was contingent on Mr. Rodriguez-Rivera’s “continuing manifestation

of responsibility as determined by the United States.” The agreement specifically

permits the Government to withdraw its recommendation if Mr. Rodriguez-Rivera

fails to cooperate: 

If [Mr. Rodriguez-Rivera] denies or gives conflicting statements as

to his involvement, falsely denies or frivolously contests relevant

conduct that the court determines to be true, willfully obstructs or

impedes the administration of justice as defined in U.S.S.G. § 3C1.1

(or willfully attempts to do so) . . . the United States reserves the

right to withdraw this recommendation without breaching this

agreement.

Despite these unambiguous provisions, Mr. Rodriguez-Rivera contends that

the Government breached the plea agreement by arguing that he was accountable

for 65.728 kilograms of cocaine based on relevant conduct, as opposed to the

5.728 kilograms of cocaine discovered in his possession and set forth as the
-8-

factual basis for the guilty plea. He also contends that the Government breached

the plea agreement by arguing for an enhancement based on his role in the offense

and recommending against a reduction based on acceptance of responsibility.

We disagree. To begin, far from constituting a breach of the plea

agreement, the Government’s arguments concerning related conduct and the

supervisory-role enhancement are required by the express language of the

agreement: the Government specifically agreed to provide the court with all

information germane to sentencing. The Government did not therefore breach the

plea agreement by arguing that 65.728 kilograms of cocaine were attributable to

Mr. Rodriguez-Rivera as relevant conduct and that Mr. Rodriguez-Rivera was

subject to an enhancement based on his role in the offense. 

Nor did the Government breach the plea agreement by recommending

against a reduction for acceptance of responsibility. The agreement specifically

notes that the Government may withdraw its recommendation for a reduction if

Mr. Rodriguez-Rivera falsely contests relevant conduct found to be true or

obstructs justice as defined in U.S.S.G. § 3C1.1. Here, both preconditions are

present. Although the District Court found that 65.728 kilograms of cocaine were

attributable to him as relevant conduct, Mr. Rodriguez-Rivera falsely contested

this finding in his affidavit. In addition, because Mr. Rodriguez-Rivera’s

affidavit contradicts this finding, the Government could seek a two-level increase

for obstruction of justice under § 3C1.1. 
-9-

As a variation on his claim that the Government breached the plea

agreement, Mr. Rodriguez-Rivera argues that the prosecutor engaged in

prosecutorial misconduct by making the aforementioned sentencing

recommendations. According to Mr. Rodriguez-Rivera, because the Government

did not file its objections to the initial presentence report until after Mr.

Rodriguez-Rivera sought safety-valve relief and a minor-role adjustment, the

Government necessarily made its sentencing recommendations to retaliate against

Mr. Rodriguez-Rivera for seeking such relief. For the reasons just explained, Mr.

Rodriguez-Rivera is incorrect. The plea agreement expressly contemplates the

inclusion of relevant conduct in determining the sentence and requires the

Government to inform both the probation office and the court of all information

that might be used for sentencing purposes. Absent an allegation that the

information was false and unreliable, it was not misconduct to bring such

information to the attention of the court and probation office. See United States

v. Dinwiddie, 1992 WL 39049, at *1 (9th Cir. Feb. 28, 1992) (unpublished

opinion) (holding that it is not misconduct for the prosecutor to bring relevant

conduct to the attention of the district court even though such conduct was not

discussed in plea agreement); cf. United States v. Saxena, 229 F.3d 1, 6 (1st Cir.

2000) (concluding that it is permissible to inform the probation office of a

defendant’s post-plea conduct to aid in preparation of the PSR because “the

government has an unswerving duty to bring all facts relevant to sentencing to the
-10-

judge’s attention.”).

B. Waiver of Appellate Rights

Because the Government did not breach the plea agreement, we now

consider whether the appellate-waiver provision bars Mr. Rodriguez-Rivera’s

appeal. A defendant who waives appellate rights in a plea agreement may not

appeal his sentence. United States v. Smith, 500 F.3d 1206, 1210 (10th Cir.

2007). We employ a three-prong test to determine whether the waiver of

appellate rights in a plea agreement is enforceable. We examine “(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.” United

States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). 

1. Scope of the Waiver

Under the plea agreement, Mr. Rodriguez-Rivera waived his right “to

appeal a sentence imposed which is within the guideline range determined

appropriate by the court,” unless the court departed upward from the applicable

range. Because Mr. Rodriguez-Rivera challenges his within-Guidelines sentence,

his appeal falls within the scope of the waiver.

2. Knowing and Voluntary Waiver
-11-

Mr. Rodriguez-Rivera contends that the District Court failed to specifically

address the waiver of his appellate rights as required by Fed. R. Crim. P.

11(b)(1)(N) and that this renders the waiver unknowing and involuntary. See

Hahn, 359 F.3d at 1325 (noting that we look for an adequate Rule 11 colloquy in

determining whether an appeal waiver was entered into knowingly and

voluntarily). Mr. Rodriguez-Rivera did not, however, object to this omission in

the District Court. Accordingly, we review only for plain error. See United

States v. Edgar, 348 F.3d 867, 870–72 (10th Cir. 2003) (applying plain-error

review to the defendant’s argument that the district court’s failure to discuss the

appellate waiver during the plea colloquy rendered the waiver unknowing and

involuntary).

The District Court’s failure to discuss the specific appellate-waiver

provision in Mr. Rodriguez-Rivera’s plea agreement is error that is plain. Id. at

871. (“[I]t is always error for a district court to fail to discuss an appellate waiver

provision during a Rule 11 colloquy.”). To satisfy the third prong of plain-error

review, however, Mr. Rodriguez-Rivera must show that his substantial rights were

affected by the error—that is, that “he would not have pleaded guilty if the

district court had complied with Rule 11(b)(1)(N).” Id. at 871–72. Mr.

Rodriguez-Rivera cannot make this showing. 

The plea agreement includes a section entitled “Waiver of Appeal and

Collateral Attack,” which details the right to appeal waived by the defendant. 
6

Although it does not satisfy Fed. R. Crim. P. 11(b)(1)(N), the court’s

statement is nonetheless relevant to whether Mr. Rodriguez-Rivera would have

pleaded guilty if a proper colloquy had occurred. 

-12-

The agreement specifically states that Mr. Rodriguez-Rivera had sufficient time to

discuss the case and the agreement with his attorney and is fully satisfied with his

attorney’s advice and representation. In addition, the agreement specifies that it

is not the result of threats or coercion. The signature portion of the agreement

states that Mr. Rodriguez-Rivera is pleading guilty because he “is guilty and is

doing so freely and voluntarily.” During the change-of-plea hearing, the court

asked Mr. Rodriguez-Rivera whether he understood that he “may have the right to

appeal any sentence that the court may impose subject to any waiver of appeal

you may agree to in a plea agreement,” to which Mr. Rodriguez-Rivera responded

that he understood.6 The Government then read portions of the plea agreement,

including the appellate-waiver provision, into the record. The court asked Mr.

Rodriguez-Rivera whether the portions read into the record reflected his

understanding of the plea agreement, and he responded that they did. Finally, Mr.

Rodriguez-Rivera reiterated that he was pleading guilty of his own free will and

that he went over the matter thoroughly with his attorney and was satisfied with

the representation of his attorney. See id. at 872 (noting similar facts as relevant

in determining whether the defendant’s substantial rights were affected by the

court’s failure to comply with Rule 11(b)(1)(N)). 

Despite the contents of his plea agreement and his statements at the plea
-13-

colloquy—all of which indicate that Mr. Rodriguez-Rivera would have pleaded

guilty even if the District Court had more thoroughly discussed the appellate

waiver—Mr. Rodriguez-Rivera, who cannot read, write, or speak English,

maintains that his former counsel never explained the plea agreement and its

contents to him. He raised the same argument before the District Court in a

motion to withdraw his guilty plea. The court held a hearing on the motion and

took testimony from Mr. Rodriguez-Rivera, his former counsel, Mark Sachse, and

the interpreter, who was present at the time Mr. Rodriguez-Rivera met with Mr.

Sachse. The District Court also made factual findings related to this issue and

specifically found that Mr. Sachse, through the aid of an interpreter, spent two

hours and fifteen minutes explaining the terms of the plea agreement, including

and especially the waiver of rights contained therein. Ample evidence in the

record supports these findings. We therefore agree with the District Court that

the terms of the agreement were explained to and understood by Mr. RodriguezRivera. Accordingly, Mr. Rodriguez-Rivera has not demonstrated that his

substantial rights were affected.

3. Miscarriage of Justice

A waiver of appellate rights in a plea agreement cannot be enforced if

doing so would result in a miscarriage of justice. Hahn, 359 F.3d at 1325. A

miscarriage of justice occurs “[1] where the district court relied on an

impermissible factor such as race, [2] where ineffective assistance of counsel in
-14-

connection with the negotiation of the waiver renders the waiver invalid, [3]

where the sentence exceeds the statutory maximum, or [4] where the waiver is

otherwise unlawful.” Id. at 1327 (quoting United States v. Elliott, 264 F.3d 1171,

1173 (10th Cir. 2001)). 

Mr. Rodriguez-Rivera contends that enforcing the waiver would result in a

miscarriage of justice because he received ineffective assistance of counsel during

the negotiation of the waiver. Although we typically require that ineffective

assistance claims be brought on collateral review, in rare instances, such claims

are appropriate for review on direct appeal. See United States v. Gordon, 4 F.3d

1567, 1570 (10th Cir. 1993). This is one such case. The issue was raised and

ruled upon by the District Court when Mr. Rodriguez-Rivera moved to withdraw

his guilty plea, and the record is sufficiently developed for review at this juncture. 

See United States v. Hamilton, 510 F.3d 1209, 1213 (10th Cir. 2007) (reviewing

ineffective assistance claim on direct appeal where issue was raised and ruled

upon by the district court and sufficient factual record existed); Gordon, 4 F.3d at

1570 (same); see also Edgar, 348 F.3d at 869 (dismissing claim for ineffective

assistance in negotiation of plea because, although the record was factually

developed, the issue had not been ruled upon by the district court).

We review ineffective assistance claims in this context according to the

two-prong test announced in Strickland v. Washington, 466 U.S. 668 (1984). 

Under this test, the defendant must show that his counsel’s performance “fell
7

Of course, the Government ultimately withdrew this recommendation, but

the withdrawal was solely the result of Mr. Rodriguez-Rivera’s own conduct.

-15-

below an objective standard of reasonableness,” Strickland, 466 U.S. at 688, and

that the deficient performance resulted in prejudice, id. at 687. In evaluating an

ineffective assistance of counsel claim, we “accept the district court’s underlying

factual findings unless clearly erroneous,” and “we review de novo whether

counsel’s performance was legally deficient and whether any deficiencies

prejudiced the defendant.” Anderson v. Attorney Gen. of Kan., 425 F.3d 853, 858

(10th Cir. 2005). 

Mr. Rodriguez-Rivera argues that his representation was constitutionally

deficient because Mr. Sachse failed to adequately inform him of the appellate

waiver and because the plea agreement was not beneficial to him. As discussed

above, the District Court made a factual finding that counsel adequately discussed

the appellate-waiver provision with Mr. Rodriguez-Rivera. This finding is not

clearly erroneous. Furthermore, the court found that Mr. Rodriguez-Rivera

received some benefit from the plea agreement. Indeed, by entering into the plea

agreement, the Government agreed to drop the conspiracy charge; thus, Mr.

Rodriguez-Rivera avoided the possibility of a conviction on two counts instead of

one. The Government also agreed to recommend a reduction for acceptance of

responsibility.7

 Finally, the Government argued in support of a sentence at the

low end of the applicable Guidelines range, as required by a provision in the plea
8

Mr. Rodriguez-Rivera also contends that enforcing the waiver is

“otherwise unlawful” primarily because the Government, in his view, breached

the plea agreement. As discussed above, however, the Government did not breach

the plea agreement. Consequently, this argument has no merit. 

-16-

agreement. Accordingly, Mr. Rodriguez-Rivera has failed to demonstrate that his

counsel was ineffective in negotiating the plea agreement and appellate waiver.8

III. CONCLUSION

Because we conclude that the plea agreement, which the Government did

not breach, includes an enforceable waiver of appellate rights, we GRANT the

motion to enforce the waiver and DISMISS Mr. Rodriguez-Rivera’s appeal of his

sentence.