USA v. Rogelio Israel Pimentel

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-12795
Non-Argument Calendar
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D.C. Docket No. 1:18-cr-00011-ALB-SMD-2

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ROGELIO ISRAEL PIMENTEL,

Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(February 14, 2020)
Before MARTIN, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:
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Rogelio Israel Pimentel appeals his 110-month sentence, which the district
court imposed after he pled guilty to conspiracy to distribute 50 grams or more of
methamphetamine. On appeal, he argues that the district court erred in failing to
award him a minor role reduction under the United States Sentencing Guidelines,
§ 3B1.2. Pimentel acknowledges that his plea agreement contained a sentence
appeal waiver, but he argues that he did not knowingly and voluntarily enter into
that waiver because the district court failed to adequately explain its terms. After
careful review, we conclude that Pimentel waived his right to appeal knowingly
and voluntarily; we therefore dismiss his appeal without considering the substance
of his challenge to his sentence.
Pimentel pled guilty pursuant to a plea agreement. As part of that
agreement, he executed a sentence appeal waiver, in which he agreed to “waive[]
any and all rights conferred by 18 U.S.C. § 3742 to appeal [his] conviction or
sentence.” Doc. 473 at 6.
1
The waiver provided an exception that permitted
Pimentel to appeal his conviction or sentence on the grounds of ineffective

1
“Doc. #” refers to the numbered entry on the district court’s docket.
Section 3742 permits a defendant to appeal any sentence (1) “imposed in violation of
law”; (2) “imposed as a result of an incorrect application of the sentencing guidelines”; (3)
“greater than the sentence specified in the applicable guideline range to the extent that the
sentence includes a greater term of imprisonment, probation, or supervised release than the
maximum established in the guideline range” or “a more limiting condition of probation or
supervised release . . . than the maximum established in the guideline range”; or (4) that ‘was
imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.”
18 U.S.C. § 3742(a).
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assistance of counsel or prosecutorial misconduct. The waiver also provided that
the government could appeal “any matter” related to the case, id., and that if the
government appealed, Pimentel would be released from the waiver. The appeal
waiver was prominently situated within the plea agreement, under its own section
entitled: “THE DEFENDANT’S WAIVER OF APPEAL AND
COLLATERAL ATTACK.” Id.
At the change-of-plea hearing, a magistrate judge
2
questioned Pimentel
about his plea agreement. Pimentel testified that he understood the terms of the
agreement and had discussed the agreement with his attorney. The magistrate
judge expressly addressed the appeal waiver, explaining that “ordinarily [Pimentel]
or the government may have the right to appeal any sentence that is imposed,” but
that “by pleading guilty with [his] plea agreement,” Pimentel would “waive[] or
give[] up [his] right to appeal or collaterally attack all or part of [his] sentence.”
Doc. 637 at 9. Pimentel confirmed that he understood. He testified that he went to
school up to the 10th grade, had not been treated for any mental illness, and was
not under the influence of drugs, alcohol, or medication. The magistrate judge
found that Pimentel was competent, capable, and informed in entering the plea,
was aware of the consequences of the plea, and was entering into the plea

2
Pimentel consented to holding his change-of-plea hearing before a magistrate judge.
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knowingly and voluntarily. The district court sentenced Pimentel to 110 months’
imprisonment.
Under Federal Rule of Criminal Procedure 11, the court conducting a
change-of-plea hearing must place the defendant under oath, “inform the defendant
of, and determine that the defendant understands,” among other things, “the terms
of any plea-agreement provision waiving the right to appeal or to collaterally
attack the sentence.” Fed. R. Crim. P. 11(b)(1)(N). “We review the validity of a
sentence appeal waiver de novo.” United States v. Johnson, 541 F.3d 1064, 1066
(11th Cir. 2008).
We will enforce a sentence appeal waiver if it was made knowingly and
voluntarily. United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). To
establish that the waiver was made knowingly and voluntarily, the government
must show either that (1) the court “specifically questioned the defendant” about
the waiver during the Rule 11 plea colloquy, or (2) the record makes clear that “the
defendant otherwise understood the full significance of the waiver.” Id. at 1351;
see also Fed. R. Crim. P. 11(h) (explaining that a variation from the requirements
of Rule 11 “is harmless error if it does not affect substantial rights”). The court
must clearly convey to the defendant the circumstances under which he is giving
up the right to appeal. See Bushert, 997 F.2d at 1352-53. We apply “a strong
presumption that [a defendant’s] statements made during the [plea] colloquy are
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true.” United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). If valid, “[a]n
appeal waiver includes the waiver of the right to appeal difficult or debatable legal
issues or even blatant error.” United States v. Grinard-Henry, 399 F.3d 1294,
1296 (11th Cir. 2005).
We conclude that Pimentel knowingly and voluntarily waived his right to
appeal his sentence. See Johnson, 541 F.3d at 1066; Bushert, 997 F.2d at 1350.
Pimentel signed the plea agreement containing the prominently delineated
sentence-appeal waiver after discussing it with his lawyer, and he testified that he
understood its provisions. We presume that Pimentel’s statements were true. See
Medlock, 12 F.3d at 187. The magistrate judge also expressly informed Pimentel
that he was waiving his right to appeal his sentence, and Pimentel testified that he
understood. Pimentel gave no indication that he lacked the capacity to understand
the provisions of his plea agreement.
Pimentel argues that the magistrate judge failed to inform him that the
government retained its right to appeal, and therefore his waiver was not knowing
and voluntary. Although it is true that the magistrate judge never expressly stated
that the appeal waiver did not prohibit the government from appealing, the record
makes clear that Pimentel understood the full significance of the waiver. Bushert,
997 F.2d at 1351. The magistrate judge told Pimentel that “ordinarily [he] or the
government” may appeal, but that Pimentel was waiving that right by pleading
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guilty. Doc. 637 at 9 (emphasis added). The magistrate judge omitted any
reference to the government’s right to appeal in light of the plea agreement, which
suggested that the government retained its right to appeal. Given the other indicia
of Pimentel’s understanding, we are unpersuaded that he did not fully understand
the import of the appeal waiver.
None of the exceptions to the waiver applies here. Pimentel does not argue
prosecutorial misconduct or ineffective assistance of counsel. And the government
has not appealed, so as to release Pimentel from the appeal waiver. Pimentel’s
sentencing challenge therefore is barred by his valid appeal waiver, and we dismiss
his appeal.
DISMISSED.

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