United States of America v. JOSE MEJILLA-HERNANDEZ a/k/a JONATHAN CASTRO-RONDON Jose Mejilla-Hernandez

1At some places in the papers before us appellant’s name is spelled “Mejillia” and at
others it is spelled “Mejilla.” We will use “Mejilla” as appellant signed the plea
agreement and a separate document entitled “Acknowledgment of Rights” in that form.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3225
UNITED STATES OF AMERICA
v.
JOSE MEJILLA-HERNANDEZ
a/k/a
JONATHAN CASTRO-RONDON
Jose Mejilla-Hernandez,
Appellant1
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 05-00710-2)
Honorable Petrese B. Tucker, District Judge
Submitted under Third Circuit LAR 34.1(a)
October 23, 2007
BEFORE: FISHER, ALDISERT, and GREENBERG, Circuit Judges
(Filed: October 23, 2007)
OPINION OF THE COURT

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GREENBERG, Circuit Judge.
This matter comes on before the court on an appeal following a judgment of
conviction and sentence entered on June 29, 2006, by the district court on a guilty plea
following a sentencing hearing held on June 20, 2006. A grand jury charged appellant
Jose Mejilla-Hernandez with conspiracy to distribute and possess with intent to distribute
five kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and possession with
intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B). On March 20, 2006, Mejilla-Hernandez, pursuant to a plea agreement with the
government, pleaded guilty both to a lesser included offense of conspiracy to distribute
and possess with intent to distribute 500 grams or more of cocaine and the offense of
possession with intent to distribute 500 grams or more of cocaine. The agreement
provided that Mejilla-Hernandez, with limited exceptions, neither would appeal nor
present any collateral challenge to his conviction or sentence. Specifically, the appellate
waiver in the plea agreement stated:
9. In exchange for the undertakings made by the government in
entering this plea agreement, the defendant voluntarily and
expressly waives all rights to appeal or collaterally attack the
defendant’s conviction, sentence, or any other matter relating
to this prosecution, whether such a right to appeal or collateral
attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28
U.S.C. § 2255, or any other provision of law.
a. Notwithstanding the waiver provision above, if the
government appeals from the sentence, then the defendant
may file a direct appeal of his sentence.

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b. If the government does not appeal, then notwithstanding
the waiver provision set forth in this paragraph, the defendant
may file a direct appeal but may raise only claims that:
1. the defendant’s sentence on any
count of conviction exceeds the
statutory maximum for that count
as set forth in paragraph 6 above;
or
2. the sentencing judge erroneously
departed upward from the
otherwise applicable sentencing
guideline range; [or]
3. the sentencing judge, exercising
the Court’s discretion pursuant to
United States v. Booker, 125 S.Ct.
738 (2005), imposed an
unreasonable sentence above the
final Sentencing Guideline range
determined by the Court.
If the defendant does appeal pursuant to this paragraph, no
issue may be presented by the defendant on appeal other than
those described in this paragraph.
App. at 30. At the guilty plea colloquy, the district court reviewed this provision with
Mejilla-Hernandez to ensure that he entered his plea knowingly and intelligently.
On June 20, 2006, the district court imposed a sentence providing for a 40-month
custodial term, a term less than the statutory maximum, and not reflective of an upward
departure from the applicable guideline range, to be followed by a five-year term of
supervised release. Quite to the contrary, rather than being the product of an upward
departure, the custodial term was below the bottom of the applicable custodial guideline

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range of 46 to 57 months. Notwithstanding his agreement not to do so, Mejilla-
Hernandez then appealed. The government has moved to dismiss the appeal, attaching a
copy of the transcript of the guilty plea colloquy to its motion.
Mejilla-Hernandez’s response to the motion recites:
1. Appellee, the government, has accurately set forth the
procedural history of Mr. Mejilla-Hernandez’s case and the terms of his
guilty plea agreement on pages one through the top of page four of its
motion.
2. While counsel does not concede on behalf of Mr. Mejilla-
Hernandez that he knowingly and voluntarily waived his appellate rights,
the transcript appended to the government’s motion is an accurate
transcription of the guilty plea hearing.
3. The decision whether to enforce an appellate waiver is within
this Court’s discretion. See United States v. Khattak, 273 F.3d 557, 562 (3d
Cir. 2001) (appeals court has discretion to refuse to honor waiver where
denial of right to appeal would work miscarriage of justice).
4. Mr. Mejilla-Hernandez asks that the Court exercise its
discretion to not honor the waiver in his case, and allow briefing so that it
can decide his appeal on the merits.
Appellant’s response at 1.
Mejilla-Hernandez has filed his brief on the merits making a single argument:
The 40-month sentence for Mr. Mejilla-Hernandez’s first offense was
unreasonably high in light of the fact that (1) he committed this first offense
at age 35, (2) he played a limited role in the offense that consisted of a
single drug transaction and (3) he made truthful attempts at cooperation that
did not result in a government departure motion.
Appellant’s br. at 12.
We will grant the government’s motion and dismiss the appeal. We have read the
transcript of the plea colloquy and it quite plainly demonstrates that Mejilla-Hernandez

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voluntarily pleaded guilty. Moreover, Mejilla-Hernandez does not make any argument
challenging the validity of the plea not precluded by the plea agreement appellate waiver
provision, and there has not been a miscarriage of justice in this case. The long and the
short of the matter is that the appellate waiver is valid and should be enforced. See
United States v. Khattak, 273 F.3d 557 (3d Cir. 2001). There is nothing more that need
be said. The appeal will be dismissed.

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