United States of America v. Omar Briceno-Quijano

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OMAR BRICENO-QUIJANO,
Defendant - Appellant.
No. 22-1235
(D.C. No. 1:19-CR-00535-CMA-GPG-1)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, BRISCOE, and McHUGH, Circuit Judges.
_________________________________
Omar Briceno-Quijano pleaded guilty to one count of conspiracy to distribute
and possess with intent to distribute controlled substances and one count of
conspiracy to commit money laundering. The district court granted the government’s
motion for a downward variance in offense level and criminal history, and then
sentenced Mr. Briceno-Quijano to 168 months on each count to run concurrently. In
his plea agreement, Mr. Briceno-Quijano waived his right to appeal any matter in
connection with his conviction and sentence. Despite this waiver, he filed a notice of
appeal. The government has moved to enforce the appeal waiver in the plea
* This order and judgment is not binding precedent, except under the doctrines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
November 3, 2022
Christopher M. Wolpert
Clerk of Court
Appellate Case: 22-1235 Document: 010110762780 Date Filed: 11/03/2022 Page: 1

-- 1 of 4 --

2
agreement under United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004)
(en banc). We grant the government’s motion and dismiss the appeal.
Under Hahn, we consider the following three factors when deciding a motion
to enforce an appeal waiver in a plea agreement: “(1) whether the disputed appeal
falls within the scope of the waiver of appellate rights; (2) whether the defendant
knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the
waiver would result in a miscarriage of justice[.]” Id. at 1325. Mr. Briceno-Quijano
argues that enforcing the waiver would result in a miscarriage of justice. He does not
assert that his appeal is outside of the scope of the waiver or that his waiver was not
knowing and voluntary, so we need not address those factors. See United States v.
Porter, 405 F.3d 1136, 1143 (10th Cir. 2005).
In Hahn, we held that enforcement of an appeal waiver does not result in a
miscarriage of justice except: “[1] where the district court relied on an impermissible
factor such as race, [2] where ineffective assistance of counsel in connection with the
negotiation of the waiver renders the waiver invalid, [3] where the sentence exceeds
the statutory maximum, or [4] where the waiver is otherwise unlawful.” 359 F.3d at
1327 (internal quotation marks omitted).
Mr. Briceno-Quijano contends that enforcing the waiver would result in a
miscarriage of justice because the district court impermissibly “relied on the fact that
[he] had family in Mexico in making its sentencing decision.” Resp. at 6. We
disagree. First, the response does not provide any record cites to support this
assertion, and we see nothing in the transcript of the sentencing hearing where the
Appellate Case: 22-1235 Document: 010110762780 Date Filed: 11/03/2022 Page: 2

-- 2 of 4 --

3
district court mentioned the fact that Mr. Briceno-Quijano had family in Mexico in
making its sentencing decision (the court never mentions family in Mexico at all).
Second, to the extent Mr. Briceno-Quijano is impliedly arguing that the court
impermissibly relied on race or national origin in sentencing him, the record does not
support that argument either.
The district court did discuss Mr. Briceno-Quijano’s connections to Mexico at
the sentencing hearing, but not for an impermissible reason. At the hearing, the
district court was considering Mr. Briceno-Quijano’s objection to the two-level
enhancement under U.S. Sentencing Guidelines § 3B1.1(c) for his role in the offense.
Although he argued he was only a “middleman,” the court found
Mr. Briceno-Quijano’s conduct met “the definition for being a leader, organizer, or
supervisor in this conspiracy.” Mot. to Enforce, Attach. 3 at 7. In support of that
conclusion, the district court noted the following facts:
For the most part, the defendant lived and operated out of Mexico.
In the stipulation of facts in the plea agreement, he agrees that he exported
narcotics from Mexico to the Western Slope area of Colorado. Once the
drugs arrived in Colorado, he used drug [couriers] whom he directed to
deliver narcotics for him.
The stipulated facts in the plea agreement also demonstrate that he
provided two people in Colorado the names of people in Mexico to whom
they should send electronic fund transfers representing payment for the
drugs received.
Id.
The court explained that “[t]hese facts demonstrate that the defendant was
actively engaged in both narcotics distribution and money laundering.” Id. And the
court further explained:
Appellate Case: 22-1235 Document: 010110762780 Date Filed: 11/03/2022 Page: 3

-- 3 of 4 --

4
Directing subordinates when and where to deliver narcotics and how
to electronically remit money to him in Mexico for those drugs makes
[Mr. Briceno-Quijano] also a leader, as that term is defined in United States
Sentencing Guideline Section 3B1.1, because those activities indicate that
he had an element of control over underlings, particularly in the form of
recruitment and direction.
Id. at 8 (internal quotation marks omitted).
We agree with the government that “[t]he district court’s discussion of
Briceno-Quijano’s ties to Mexico . . . offer not even a hint that the court enhanced his
sentence because of an impermissible factor such as race.” Reply to Mot. to Enforce
at 3. Mr. Briceno-Quijano has therefore failed to show that enforcement of the
appeal waiver in his plea agreement would result in a miscarriage of justice.
Accordingly, we grant the government’s motion to enforce and dismiss this
appeal.
Entered for the Court
Per Curiam
Appellate Case: 22-1235 Document: 010110762780 Date Filed: 11/03/2022 Page: 4

-- 4 of 4 --