[00:00:00] Speaker 02: case number 22-3031, United States of America versus Wilbur Vigil Benitez, also known as Solidario Appellant. [00:00:09] Speaker 02: Mr. Stewart for the Appellant. [00:00:10] Speaker 02: Mr. McGovern for the Appellate. [00:00:14] Speaker 03: Mr. Stewart, whenever you're ready. [00:00:16] Speaker 01: Morning, Your Honor. [00:00:17] Speaker 01: Morning, Your Honors. [00:00:19] Speaker 01: Andrew Stewart on behalf of Mr. Wilbur Vigil Benitez. [00:00:22] Speaker 01: You know, this matters before the court. [00:00:30] Speaker 01: I'm going to turn it over to [00:00:40] Speaker 01: We, at the district court level, there's no question about whether or not the guidelines are calculated accurately. [00:00:45] Speaker 01: This is a guideline sentence. [00:00:47] Speaker 01: And in essence, our argument is that because there was a, well, there's also a rebuttable assumption that a guideline sentence is reasonable. [00:01:00] Speaker 01: our argument is that where the parties relied on the probation officer's calculation of the guidelines, which was lower than what was calculated for the purposes of the PSR, where the parties relied on that calculation in drafting the plea agreement and ultimately Mr. Vigil says entering the plea agreement and where the court failed to adequately address the [00:01:28] Speaker 01: I guess, district court counsel's request for variance that that sentence is, it was imposed, is unreasonable. [00:01:40] Speaker 01: In essence, yes. [00:01:42] Speaker 03: You didn't file a reply brief here. [00:01:45] Speaker 01: That's correct, Your Honor. [00:01:46] Speaker 03: Yeah. [00:01:46] Speaker 03: And so maybe you can say why we shouldn't apply the appeal waiver. [00:01:51] Speaker 03: in this case. [00:01:52] Speaker 01: So I guess last things first. [00:01:54] Speaker 01: My review of the case law does not indicate that there is an argument that would support the waiver of appeal being enforced. [00:02:08] Speaker 01: There is one case that I was able to identify where there is a dissent, but I'm not aware that the court has found that the appeal waiver is enforced. [00:02:20] Speaker 03: Why? [00:02:20] Speaker 03: I mean, why is this appeal waiver not enforceable? [00:02:24] Speaker 03: I mean, we enforce appeal waivers. [00:02:27] Speaker 01: Right. [00:02:28] Speaker 01: So I think in this case, the, well, [00:02:32] Speaker 01: The nature of the plea agreements generally that are provided to counsel include the appeal waiver. [00:02:41] Speaker 01: Many have argued previously that it is in essence an adhesion contract, whether it's a take it or leave it on behalf of the defendant. [00:02:51] Speaker 01: Then I think the one other issue that perhaps is unique to this case is that the parties [00:02:58] Speaker 01: head the probation office, calculate the guidelines, and then they were lower. [00:03:04] Speaker 01: Parties then relied on that and included that calculation in their plea agreement. [00:03:09] Speaker 01: Now, we also recognize that the parties agreed that that calculation wasn't binding and that the parties were free to argue whatever sentence they felt was appropriate, including language about the criminal history category. [00:03:26] Speaker 01: So again, [00:03:29] Speaker 01: I'm not aware of anything that would necessarily, I'm not aware of any prior decision by this court that it's found that that appeal waiver isn't valid. [00:03:40] Speaker 01: But under these circumstances where the parties relied on the guideline calculation that ended up not being correct, the court may find that it shouldn't be enforced in this case. [00:04:00] Speaker 03: Let me just see if Judge Henderson has any further questions. [00:04:11] Speaker 03: Judge Henderson. [00:04:16] Speaker 03: I think so. [00:04:18] Speaker 03: Okay, can you hear me now? [00:04:21] Speaker 03: Oh, yes. [00:04:21] Speaker 03: Thank you. [00:04:22] Speaker 03: Okay, I don't have any questions. [00:04:23] Speaker 03: Thanks. [00:04:24] Speaker 03: Okay, great. [00:04:24] Speaker 03: Thank you. [00:04:26] Speaker 01: I don't have anything further. [00:04:29] Speaker 01: Um, I reserved three minutes for response. [00:04:32] Speaker 01: Thank you. [00:04:42] Speaker 00: Good morning, Your Honours. [00:04:44] Speaker 00: May please support Michael McGovern on behalf of the Pelley of the United States. [00:04:48] Speaker 00: Because appellant has twice over waived his claim that he now advances that the district court's sentence was substantively unreasonable, this court should dismiss his appeal or in the alternative, affirm the district court's decision below, sentencing decision below. [00:05:06] Speaker 00: Even if the court were to consider his claim, the district court did not abuse its discretion when it sentenced appellant to 84 months based on its consideration of the 3553A [00:05:18] Speaker 00: The two grounds of waiver that the government is referring to include both the express waiver that Your Honor just discussed with Allen's counsel. [00:05:27] Speaker 00: And that appears at A41 of the record. [00:05:30] Speaker 00: And that waiver waives all right. [00:05:35] Speaker 00: to appeal the sentence, including any term of imprisonment, except to the extent a court sentences the appellant above the statutory maximum. [00:05:45] Speaker 00: That exception was not met here. [00:05:47] Speaker 00: Or in circumstances where the court were to sentence above the guidelines range as determined by the court, also an exception, which is not applicable in this case. [00:05:56] Speaker 00: And so because that valid appeal waiver, which the court has upheld contractual plea agreement waivers, can't be overcome, we believe this claim is waived and should be dismissed. [00:06:09] Speaker 03: Mr. McGovern, I have one question. [00:06:16] Speaker 03: So in a case like this, is the [00:06:20] Speaker 03: Is the fact that the waiver has to be knowing, intelligent, and voluntary, is that part of the government's burden, or do you view that as an affirmative defense? [00:06:32] Speaker 00: I believe that where the government asserts the waiver provision as a reason to dismiss an appeal, that it would be then incumbent upon the defendant to come forward to show that that plea waiver was not knowing voluntarily. [00:06:50] Speaker 03: and do you think that the defendant has has forfeited that by not filing a reply brief here? [00:06:56] Speaker 00: I do believe so, but but even if this court were to to find that [00:07:04] Speaker 00: there's a requirement that it be shown that it be knowing voluntary. [00:07:07] Speaker 00: This record certainly supports that. [00:07:10] Speaker 00: It's very clear that the plea waiver was discussed at the plea hearing prior to the court accepting the plea agreement, that he was made aware that he was forfeiting his right to appeal, and that he had discussed this with his counsel. [00:07:26] Speaker 00: The plea agreement itself contained an affirmation by the defendant that he had discussed the provisions of the plea agreement with his waiver. [00:07:34] Speaker 00: is discussed with his counsel, the waiver provision. [00:07:36] Speaker 00: And so even if there was a burden, um, to show that it was knowing involuntary, the government submits based on it's, um, it's a brief in this case that the record does support that here. [00:07:52] Speaker 00: The court has no further questions. [00:07:53] Speaker 03: Judge Henderson has any questions? [00:07:55] Speaker 03: No questions. [00:07:56] Speaker 03: Thank you. [00:07:57] Speaker 03: Thank you. [00:07:57] Speaker 03: Thank you, your honor. [00:07:58] Speaker 03: Thank you. [00:08:08] Speaker 01: I'm on behalf of Mr. Wilbur. [00:08:12] Speaker 01: Benitez, we have nothing. [00:08:14] Speaker 03: Thank you. [00:08:18] Speaker 03: Mr. Stewart, you were appointed by the court to represent the appellant in this case, and the court thanks you for your assistance. [00:08:25] Speaker 03: The case is submitted.