UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

RICARDO GARCIA-CHIHUAHUA, 

 Defendant - Appellant. 

No. 14-3109 

(D.C. No. 6:14-CM-60012-EFM-1) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before KELLY, TYMKOVICH, and McHUGH, 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. 

I. INTRODUCTION 

Ricardo Garcia-Chihuahua was sentenced to eighteen months’ imprisonment 

for violating the terms of his supervised release imposed after being convicted for 

unlawful reentry into the United States in 2008 (the 2008 Reentry Case). On appeal, 

 *

 This order and judgment is not binding precedent, except under the doctrines 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 

May 26, 2015

Elisabeth A. Shumaker 

Clerk of Court

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he argues this sentence should be vacated based on an alleged due process violation 

in a separate matter in which Mr. Garcia-Chihuahua pled guilty in 2013 to unlawful 

reentry into the United States (the 2013 Reentry Case). Specifically, Mr. GarciaChihuahua claims his guilty plea in the 2013 Reentry Case was not knowing and 

voluntary because he was not informed that the 2008 Reentry Case would be 

transferred to the same federal district in which he pled guilty in the 2013 Reentry 

Case. This transfer resulted in the same federal judge imposing sentence for the 

violation of the conditions of supervised release in the 2008 Reentry Case and the 

conviction in the 2013 Reentry Case. We affirm. 

II. BACKGROUND 

In 2008, Mr. Garcia-Chihuahua was convicted of unlawful reentry after 

deportation in the Western District of Texas (the 2008 Reentry Case). He was 

sentenced to twenty-seven months’ imprisonment and three years of supervised 

release. One of the conditions of his supervised release prohibited Mr. GarciaChihuahua from entering the United States without legal documentation. Mr. GarciaChihuahua was released from prison in April 2012, and his three-year supervised 

release term began at that time. In July 2012, Mr. Garcia-Chihuahua was removed to 

Mexico, his country of citizenship. 

In November 2013, while he was still under supervised release for his 2008 

conviction, Mr. Garcia-Chihuahua was found in Kansas without documentation and 

was indicted in the District of Kansas for unlawful reentry after deportation, in 

violation of 8 U.S.C. § 1326(a), (b) (the 2013 Reentry Case). Mr. Garcia-Chihuahua 

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and the United States entered into a plea agreement in the 2013 Reentry Case under 

Federal Rule of Criminal Procedure 11(c)(1)(C), pursuant to which the Government 

agreed to seek a sentence within the range set by the U.S. Sentencing Guidelines 

(Guidelines) and Mr. Garcia-Chihuahua agreed to waive certain rights, including his 

right to appeal or collaterally attack the prosecution, conviction, or sentence 

associated with the plea. Mr. Garcia-Chihuahua therefore pled guilty to unlawful 

reentry, and the district court accepted the plea and set his sentencing hearing for 

two-and-a-half months later. 

While Mr. Garcia-Chihuahua’s 2013 Reentry Case was pending in the District 

of Kansas, the Government filed a motion in the Western District of Texas to revoke 

Mr. Garcia-Chihuahua’s supervised release in the 2008 Reentry Case. The basis for 

the Government’s motion for revocation was that Mr. Garcia-Chihuahua violated the 

terms of his supervised release by reentering the United States without 

documentation. The Western District of Texas thus reopened the 2008 Reentry Case 

as a result of Mr. Garcia-Chihuahua’s supervised release violation. 

 Before Mr. Garcia-Chihuahua’s sentencing hearing in the 2013 Reentry Case, 

but after the court had accepted his guilty plea, the Western District of Texas 

transferred Mr. Garcia-Chihuahua’s reopened 2008 Reentry Case to the District of 

Kansas. Although the Government and Mr. Garcia-Chihuahua were aware that the 

2008 Reentry Case had been reopened before they entered the plea agreement in the 

2013 Reentry Case, there was no indication at that time that the 2008 Reentry Case 

would be transferred to Kansas. Accordingly, the plea agreement did not mention it. 

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Mr. Garcia-Chihuahua thereafter sought to renegotiate his plea agreement, and 

the Government agreed to a modification. The parties submitted a joint motion to 

amend the plea agreement in which they requested a total sentence of thirty months 

to be imposed for both the 2013 Reentry and the violation of the conditions of 

supervised release in the 2008 Reentry Case. The parties reached this sentence by 

adopting the middle of the Guidelines range for the 2013 Reentry offense, twentyfour months, and adding a consecutive six months for the supervised release offense 

in the 2008 Reentry Case. The parties explained that their motivation in seeking an 

amended plea agreement was to avoid a potential appeal in the 2008 Reentry Case, in 

which Mr. Garcia-Chihuahua had not waived his appellate rights. 

The district court held a hearing on the parties’ motion to amend the plea 

agreement. The court expressed its concern with the suggested thirty-month sentence, 

explaining the Guidelines range sentence for the 2013 Reentry offense was twentyone to twenty-seven months and the Guidelines range for the supervised release 

offense in the 2008 Reentry Case was eighteen to twenty-four months. The court 

reasoned that “despite three prior offenses [for unlawful reentry] for which 

[Mr. Garcia-Chihuahua] served prison time and was deported, he does not seem to 

have learned the lesson, and he’s reentered again.” Therefore, the court felt that a 

thirty-month combined sentence was too lenient and denied the motion to amend the 

plea agreement. 

The district court held a joint sentencing hearing for the 2013 Reentry offense 

and the supervised release offense in the 2008 Reentry Case, but did not consolidate 

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the cases. At that hearing, the district court sentenced Mr. Garcia-Chihuahua to 

twenty-one months’ imprisonment for the 2013 Reentry Offense and eighteen 

months’ imprisonment for the supervised release offense in the 2008 Reentry Case, to 

be served consecutively1

 for a total of thirty-nine months’ imprisonment. Mr. GarciaChihuahua filed a timely notice of appeal, challenging only the sentence imposed in 

the 2008 Reentry Case for violation of the conditions of supervised release. Oddly, 

he challenges the 2008 Reentry Case sentence based on an argument that his guilty 

plea in the 2013 Reentry Case was not knowing and voluntary. 

III. DISCUSSION 

Mr. Garcia-Chihuahua argues his due process right to be fully and fairly 

apprised of the consequences of his guilty plea in the 2013 Reentry Case was violated 

because he was not informed that the 2008 Reentry Case might be transferred to the 

same district for sentencing. In terms of relief, he requests that we vacate his 

eighteen-month sentence in the 2008 Reentry Case. In response, the Government 

raises three alternative arguments: (1) we lack jurisdiction to hear Mr. GarciaChihuahua’s appeal, (2) Mr. Garcia-Chihuahua failed to preserve his due process 

argument, and (3) Mr. Garcia-Chihuahua’s due process argument fails to raise a 

proper challenge to his sentence in the 2008 Reentry Case. Although we disagree 

 1

 When the district court pronounced its tentative sentence, the court 

mistakenly said that the sentences would run concurrently. But when the court 

officially imposed the sentence, it stated that they would run consecutively. Counsel 

for Mr. Garcia-Chihuahua brought this to the court’s attention, but the district court 

clarified that, if it had said concurrently, “that was a mistake” and that it “intended all 

along that these would be consecutive sentences,” as it had previously indicated. 

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with the Government’s jurisdictional and preservation arguments, we agree on the 

merits and affirm the district court. 

A. Jurisdiction 

First, as to jurisdiction, the Government contends that because Mr. GarciaChihuahua has appealed only the sentence entered in the 2008 Reentry Case but 

raises an argument challenging the validity of his guilty plea in the 2013 Reentry 

Case, he has asked us to review a case over which we do not have jurisdiction.2

 But 

Mr. Garcia-Chihuahua has not requested permission to withdraw his guilty plea or 

asked that we alter his sentence in the 2013 Reentry Case; instead, he challenges the 

validity of his sentence entered in the 2008 Reentry Case. Under 18 U.S.C. 

§ 3742(a)(1), we have jurisdiction to review “an otherwise final sentence if the 

sentence . . . was imposed in violation of law.” See also United States v. Washington, 

759 F.3d 1175, 1180–81 (10th Cir. 2014) (explaining that “a conviction and 

imposition of a sentence constitute a final judgment” under 28 U.S.C. § 1291 and 

therefore this court has jurisdiction over an appeal from a final sentence, regardless 

 2

 Mr. Garcia-Chihuahua argues we should deny the Government’s motion to 

dismiss for lack of jurisdiction because the Government filed the motion more than 

fourteen days after Mr. Garcia-Chihuahua filed his notice of appeal. See 10th Cir. R. 

27.2(A)(3)(a) (“A motion [to dismiss for lack of appellate jurisdiction] should be 

filed within 14 days after the notice of appeal is filed, unless good cause is shown.”). 

But “an untimely motion does not result in forfeiture if the government raises the 

issue in its merits brief.” United States v. Mendoza, 698 F.3d 1303, 1308 n.1 (10th 

Cir. 2012). The Government presented its jurisdictional challenge in its merits brief 

and therefore did not forfeit this argument. Moreover, we are always free to review 

our own jurisdiction. See Shepherd v. Holder, 678 F.3d 1171, 1180 (10th Cir. 2012). 

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of whether defendant’s arguments fall within one of the categories in § 3742(a) 

(internal quotation marks omitted)).

Mr. Garcia-Chihuahua timely appealed the otherwise final sentence in the 

Supervised Release Case, which he contends was imposed in violation of the law. 

Whether Mr. Garcia-Chihuahua’s argument based on a due process violation that 

allegedly took place in a different case is a proper basis to challenge his sentence 

goes to the merits of his appellate argument, not to jurisdiction. Cf. Hagans v. Lavine, 

415 U.S. 528, 542 (1974) (explaining that jurisdiction “is not defeated . . . by the 

possibility that the averments might fail to state a cause of action on which 

petitioners could actually recover,” and therefore “dismissal of the case would be on 

the merits, not for want of jurisdiction” (internal quotation marks omitted)). We 

therefore deny the Government’s motion to dismiss for lack of jurisdiction. 

B. Preservation and Standard of Review 

The parties also dispute the appropriate standard under which we should 

review Mr. Garcia-Chihuahua’s due process challenge. The Government asserts 

Mr. Garcia-Chihuahua failed to preserve this claim and we should therefore review it 

for plain error. Mr. Garcia-Chihuahua on the other hand advocates for a de novo 

standard of review. Although Mr. Garcia-Chihuahua did not specifically raise a due 

process claim in the district court, as a whole, his arguments at his sentencing hearing 

are sufficiently similar to his arguments on appeal for preservation purposes. At the 

sentencing hearing, Mr. Garcia-Chihuahua argued he had not expected the sentencing 

for violation of the conditions of supervised release in the 2008 Reentry Case to be 

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transferred to Kansas, and he expressed concern that the transfer would lead to an 

unanticipated increase in his sentence. Thus, Mr. Garcia-Chihuahua’s primary 

argument for seeking a lower sentence in the 2008 Reentry Case was that he was not 

fully apprised of the consequences of his guilty plea in the 2013 Reentry Case. 

Whether this was sufficient to preserve Mr. Garcia-Chihuahua’s due process claim is 

admittedly a close call, but because “this is not a case where a different result would 

occur as a result of our standard of review,” we give Mr. Garcia-Chihuahua the 

benefit of the doubt and conclude that the argument was sufficiently preserved. 

United States v. Vann, 776 F.3d 746, 757 n.8 (10th Cir. 2015) (concluding that 

objections made during an expert witness’s testimony, which came “in varying 

forms,” were sufficient to preserve defendant’s appellate challenge to the reliability 

of the expert’s testimony as a whole). We therefore review his due process argument 

de novo. See United States v. Gurule, 461 F.3d 1238, 1247 (10th Cir. 2006) (“Our 

review of constitutional challenges to a sentence is de novo.”). 

C. Merits 

Turning to the merits of Mr. Garcia-Chihuahua’s due process argument, we 

agree with the Government that this argument fails to state a proper basis for vacating 

Mr. Garcia-Chihuahua’s sentence in the 2008 Reentry Case. Simply, Mr. GarciaChihuahua fails to explain how an alleged due process violation in the 2013 Reentry 

Case renders his sentence for violation of the conditions of supervised release in the 

2008 Reentry Case unlawful. Mr. Garcia-Chihuahua does not argue the alleged due 

process violation undermines the district court’s finding that he violated the terms of 

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his supervised release; nor does he claim the due process violation resulted in an 

incorrect application of the Guidelines, the imposition of a sentence that exceeded the 

permissible Guidelines range, or the imposition of a sentence that was otherwise 

unreasonable. Instead, his due process claim challenges solely the validity of his 

guilty plea in the separate 2013 Reentry Case, which says nothing of the lawfulness 

of his sentence in the Supervised Release Case. 

Indeed, even if Mr. Garcia-Chihuahua’s due process claim were meritorious— 

something we cannot decide here— the appropriate remedy would be to permit him to 

withdraw his guilty plea in the 2013 Reentry Case, not to vacate his sentence in the 

2008 Reentry Case. See, e.g., United States v. McCann, 940 F.2d 1352, 1358, 1360 

(10th Cir. 1991) (concluding that a defendant’s guilty plea was not voluntary and 

therefore directing the district court to permit the defendant to withdraw his guilty 

plea). But Mr. Garcia-Chihuahua cannot collaterally attack the guilty plea entered in 

the 2013 Reentry Case in this appeal of the sentence imposed for violation of the 

conditions of supervised release in the 2008 Reentry Case. See Bousley v. United 

States, 523 U.S. 614, 621 (1998) (“[T]he voluntariness and intelligence of a guilty 

plea can be attacked on collateral review only if first challenged on direct review.”). 

Our conclusion is not affected by the fact that Mr. Garcia-Chihuahua waived 

his right to appeal in the 2013 Reentry Case through the plea agreement. First, if 

Mr. Garcia-Chihuahua did not knowingly and voluntarily enter the guilty plea in the 

2013 Reentry Case, the plea agreement, including the provision waiving Mr. GarciaChihuahua’s appellate rights, would be unenforceable. See United States v. Mitchell, 

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633 F.3d 997, 1001 (10th Cir. 2011) (“If a guilty plea is not knowing and voluntary, 

it is void and any additional waivers in the plea agreement generally are 

unenforceable.” (citation omitted)). Second, Mr. Garcia-Chihuahua’s decision to 

waive his appeal rights in the 2013 Reentry Case did not create a right to raise claims 

of error occurring in that case through an appeal from the sentence entered in a 

different case. In other words, Mr. Garcia-Chihuahua was not deprived of a means to 

raise his due process argument; instead, he failed to pursue the argument in the 

correct case. 

IV. CONCLUSION 

Because Mr. Garcia-Chihuahua’s due process argument fails to state a valid 

basis for vacating the sentence imposed as a result of the revocation of his supervised 

release in the 2008 Reentry Case, we affirm the district court’s imposition of that 

sentence. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge 

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