The defendant, Angel Alejandro Pena, was involved in smuggling illegal immigrants and was arrested after a bar fight where he brandished a pistol. He was subsequently indicted by a federal grand jury for conspiring to transport illegally present aliens and charged with two counts under 18 U.S.C. § 922(n) for possessing a firearm and ammunition while under indictment. Pena moved to dismiss the indictment, arguing the statute violated the Second Amendment. The district court denied this motion. Pena then entered a plea agreement, pleading guilty to one count while the government dismissed the other. The agreement included a broad waiver where Pena voluntarily gave up the right to appeal his conviction or sentence on any ground, including constitutional challenges to the statute. Although the district court incorrectly advised Pena at sentencing that he was not foreclosed from challenging the constitutionality of the charge, Pena proceeded to appeal, arguing the waiver was invalid due to ineffective assistance of counsel, government breach of the agreement, and the court's incorrect statements.
The court reviewed the validity of the appeal waiver de novo, applying a two-step inquiry to determine if the waiver was knowing and voluntary and if the plain language applied to the circumstances. The court found the waiver enforceable because Pena signed a written agreement explicitly waiving the right to appeal, testified that he read and understood the terms, and raised no questions about the waiver during the plea colloquy. The court rejected Pena's argument that the magistrate judge's limited comments on sentencing invalidated the waiver, noting that judges are not required to specifically admonish a defendant about appeal waivers if the record shows the defendant understood the agreement. Furthermore, the court held that the district court's incorrect statements at sentencing regarding Pena's right to appeal did not invalidate the waiver, citing precedent that such confusion has no effect on the validity of a waiver where the defendant has already knowingly agreed to it. Regarding the ineffective assistance of counsel claim, the court found it waived because Pena did not raise it in his opening brief and failed to show the record was sufficiently developed to evaluate the claim on direct appeal. Finally, the court addressed the claim of government breach regarding the acceptance of responsibility adjustment. The plea agreement conditioned the government's non-opposition on Pena refraining from conduct demonstrating a lack of acceptance prior to sentencing. The court found no clear or obvious error in the government's opposition, as the sentencing guidelines allow consideration of misconduct from the time the defendant is charged, and the issue was subject to reasonable dispute.
The appeal is dismissed, leaving the conviction and sentence in place. This decision reinforces that valid plea agreement waivers are strictly enforced even when district courts make procedural errors at sentencing, provided the defendant knowingly entered the agreement. It also clarifies that claims of ineffective assistance regarding waivers must be raised early and typically require a developed record at the district court level to be considered on direct appeal. The ruling leaves the Second Amendment challenge to 18 U.S.C. § 922(n) unresolved for this defendant, as the waiver precluded appellate review.
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