United States of America v. Oscar Ramiro Ortega -Hernandez , Also Known As Oscar Ramiro Ortega

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 2015 Decided October 27, 2015
No. 14-3022
UNITED STATES OF AMERICA ,
APPELLEE
v.
OSCAR RAMIRO ORTEGA -HERNANDEZ , ALSO KNOWN AS
OSCAR RAMIRO ORTEGA ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cr-00014-1)
Marie L. Park, appointed by the court, argued the cause
and filed the briefs for appellant.
James A. Ewing, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney at the time the brief was filed,
Elizabeth Trosman, John P. Mannarino, Alessio Evangelista,
and George Varghese, Assistant U.S. Attorneys.
Before: HENDERSON, K AVANAUGH and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge PILLARD.

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PILLARD, Circuit Judge: Oscar Ramiro Ortega-
Hernandez pleaded guilty to injuring a dwelling and placing
lives in jeopardy, 18 U.S.C. § 1363, and discharging a firearm
during a crime of violence, id. § 924(c)(1)(A). As part of a
plea bargain, he agreed to waive his right to appeal his
sentence. That sentence includes a twenty-five year term of
imprisonment, which falls within the applicable Sentencing
Guidelines range, and sixty months of supervised release.
The district judge indicated—inadvertently, it appears—on
the written judgment of conviction, but not in the oral
pronouncement of the sentence, that Ortega-Hernandez must
register as a sex offender as a condition of his supervised
release. The government never asked the district court to
require that Ortega-Hernandez register as a sex offender, and
it has not identified facts that would support such a
registration. The parties agree that the district court erred in
checking the “sex offender” box on the pre-printed judgment
form.
On appeal, Ortega-Hernandez challenges two aspects of
his sentence. First, he contends that he should not be subject
to the sex-offender registration condition of supervised
release. The government agrees. Because the government
has not asked us to enforce the appeal waiver with respect to
that condition, we address on its merits Ortega-Hernandez’s
challenge to that condition and remand to the district court to
conform the written judgment to the oral sentence. Second,
Ortega-Hernandez contends that, given Ortega-Hernandez’s
mental health history, the sentencing judge committed
procedural and substantive error in setting such a long term of
imprisonment. The government counters that Ortega-
Hernandez validly waived his right to appeal that aspect of his
sentence. We agree with the government on that point. We
therefore dismiss Ortega-Hernandez’s challenge to his term of
imprisonment.

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I.
On November 11, 2011, Ortega-Hernandez aimed a high-
powered rifle at the White House and fired at least eight shots.
Several bullets hit the part of the building where the President
and his family live. No one was injured. According to people
who know him, Ortega-Hernandez harbored paranoid beliefs
about the federal government. He believed that President
Obama was the anti-Christ and that it was Ortega-
Hernandez’s mission, as “the modern day Jesus Christ,” to
“take out Obama.” Gov’t App. 106-07.
The United States charged Ortega-Hernandez with
nineteen counts related to the shooting, including attempting
to assassinate the President. Shortly before his trial was set to
begin, Ortega-Hernandez pleaded guilty to, and was convicted
of, two counts. As part of the plea deal, he agreed to a
terrorism adjustment that significantly raised his estimated
offense level under the Sentencing Guidelines, resulting in an
estimated guideline range of 288 to 330 months of
imprisonment. The plea agreement stipulates that a sentence
within that range “would constitute a reasonable sentence in
light of all of the factors set forth in 18 U.S.C. § 3553(a).”
Pub. App. 29.
Ortega-Hernandez’s plea agreement includes a waiver of
his right to appeal. The appeal waiver states that Ortega-
Hernandez waived “the right to appeal the sentence in this
case, including any term of imprisonment, fine, award of
restitution, term of supervised release, and the manner in
which the sentence was determined, except to the extent the
Court sentences [him] above the statutory maximum or
applicable guidelines range . . . .” Pub. App. 32.

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At the plea hearing, the district judge reviewed the plea
agreement with Ortega-Hernandez, as required by Federal
Rule of Criminal Procedure 11. The judge observed that
“everybody has agreed that a sentence within the estimated
guideline range would be a reasonable sentence under the
law,” and asked Ortega-Hernandez whether he understood
that. Pub. App. 59. He answered that he did. As to the
appeal waiver, the judge explained that “normally a defendant
can appeal his sentence and say it was the wrong sentence, it’s
too stern. You’ve agreed not to do that as long as you are not
sentenced above the statutory maximum or higher than the
guideline range.” Pub. App. 63. She also informed Ortega-
Hernandez that, notwithstanding the appeal waiver, he would
retain his right to attack his sentence on the ground that he
had received ineffective assistance of counsel or that he had
newly discovered evidence. The judge asked if he understood
those limitations on his appellate rights, and he replied that he
did. Ortega-Hernandez further confirmed that he understands
English, read the plea documents and discussed them with his
lawyers, and was satisfied with his lawyers’ advice. The
judge found that Ortega-Hernandez’s decision was informed
and voluntary and accepted his plea of guilty to the two
counts.
During sentencing proceedings, Ortega-Hernandez urged
the district judge to vary from the agreed-upon guideline
range. Defense counsel argued that Ortega-Hernandez was
not a terrorist; rather, he was a confused, mentally troubled
person who had not intended to kill the President. The judge
acknowledged those arguments and noted that they were
“well-taken.” She then talked about each of the relevant
factors under 18 U.S.C. § 3553(a). She acknowledged
Ortega-Hernandez’s mental health struggles and granted them
some mitigating weight, though she ultimately concluded that

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they were offset by the seriousness of the offense and the
need for both specific and general deterrence.
The district judge then announced the sentence. She
imposed a three-hundred-month term of imprisonment, a
sixty-month term of supervised release, and a restitution
award. The judge also announced several general and special
conditions of supervised release to which Ortega-Hernandez
would be subject, including that he should cooperate with
DNA collection and must not possess a firearm or other
dangerous weapon. She said nothing about sex-offender
registration.
Three days later, the district judge entered the written
judgment against Ortega-Hernandez. The judgment form is
pre-printed, with spaces to enter information and options to
check boxes. In the section entitled “Supervised Release,” the
form lists generally applicable conditions of supervised
release. It also lists five potential additional conditions with
boxes for the judge to check if those conditions apply. As
relevant here, the second of the five conditions prohibits the
defendant from possessing a firearm, ammunition, and other
weapons. The third condition mandates cooperation with
DNA collection. The fourth condition orders compliance
with the requirements of the Sex Offender Registration and
Notification Act, 42 U.S.C. § 16901, et seq. (SORNA), as
directed by the appropriate official. Ortega-Hernandez has
never been convicted of a sex offense. To make the written
judgment track the oral sentence, the judge should have
checked the second and third boxes; instead, she checked the
third and fourth. Ortega-Hernandez’s counsel filed a notice of
appeal the following business day.

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II.
We have jurisdiction over this appeal, irrespective of the
validity of the appeal waiver. See United States v. Shemirani,
No. 13-3080, 2015 WL 5616250, at *2 (D.C. Cir. June 12,
2015). We review de novo the validity of Ortega-
Hernandez’s waiver of the right to appeal his sentence. See
United States v. Guillen, 561 F.3d 527, 531 (D.C. Cir. 2009).
A.
The parties agree that Ortega-Hernandez should not be
subject to sex-offender registration as a condition of his
supervised release. They are correct, and the appeal waiver
does not prevent us from so holding. Because “waiver of
appellate rights is not a jurisdictional issue,” Shemirani, 2015
WL 5616250, at *2, we need not enforce an appeal waiver
when the government has not asked us to do so, see United
States v. Jones, 667 F.3d 477, 486 (4th Cir. 2012) (“[T]he
government does not seek to enforce the [appeal] waiver, and
we will not sua sponte enforce it.”). By declining to raise the
argument on appeal, the government may waive the appeal
waiver’s bar against appellate review. See United States v.
Story, 439 F.3d 226, 231 (5th Cir. 2006) (“In the absence of
the government’s objection to [the defendant’s] appeal based
on his appeal waiver, the waiver is not binding because the
government has waived the issue.”). That is precisely what
the government has done in this case. The government has
not asked us to enforce Ortega-Hernandez’s waiver of his
right to appeal, at least with respect to the sex-offender
registration condition imposed on him by the written
judgment of sentence. The government conceded as much in
oral argument. See Oral Arg. Rec. 20:05-:10 (“We are not
asking this court to enforce [the appeal waiver] as to the
SORNA registration requirement.”).

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The government and Ortega-Hernandez both
affirmatively request in their briefing to us that we remand
this case to the district court to conform the written judgment
to the oral pronouncement of the sentence. See Gov’t Br. 15;
Appellant’s Br. 22. Because the “pronouncement of the
sentence constitutes the judgment of the court,” United States
v. Love, 593 F.3d 1, 9 (D.C. Cir. 2010) (quoting Kennedy v.
Reid, 249 F.2d 492, 495 (D.C. Cir. 1957)), when the written
judgment is inconsistent with the pronouncement of the
sentence, “we will order the judgment corrected to conform to
the sentence imposed from the bench,” id. It appears that the
judge was one line off when she checked the two boxes. We
therefore remand to the district court with instructions to
conform the written judgment to the oral sentence.
B.
Ortega-Hernandez raises a second challenge to his
sentence: He contends that his within-guidelines term of
imprisonment is unreasonable. According to Ortega-
Hernandez, the district judge failed to adequately consider,
and give appropriate mitigating weight to, his mental health,
and failed to sufficiently explain her reasons for refusing his
request for a downward variance from the guideline range.
The government asserts that Ortega-Hernandez validly
waived his challenge to the length of a sentence within the
guideline range and so we should not consider it. We agree
with the government.
The government has waived enforcement of the appeal
waiver only as to the condition of supervised release requiring
Ortega-Hernandez to register as a sex offender. It seeks
enforcement of the appeal waiver as to the procedural and
substantive reasonableness of Ortega-Hernandez’s term of
imprisonment. Such partial invocation of the appeal waiver is

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permissible. See Story, 439 F.3d at 231 (determining that the
defendant’s “waiver of appeal is enforceable to the extent that
the government invokes the waiver provision in his plea
agreement”). Because we are satisfied that Ortega-Hernandez
made a knowing, intelligent, and voluntary waiver of his right
to appeal his sentence to a term of imprisonment within the
guideline range, we will enforce that waiver. See Guillen,
561 F.3d at 529 (stating that “knowing, intelligent, and
voluntary” appeal waivers “generally may be enforced”); cf.
United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en
banc) (“The requirement that a plea agreement and waiver be
entered into knowingly and voluntarily applies to each term of
an agreement.”).
Ortega-Hernandez agreed as part of his plea bargain that
a sentence within the guideline range—as his sentence is—
would be reasonable according the factors set out in 18 U.S.C.
§ 3553(a). He also specifically waived his right to challenge
the duration of his term of imprisonment. The district judge
conducted a plea colloquy in accordance with Federal Rule of
Criminal Procedure 11, during which Ortega-Hernandez
confirmed that he had consulted with his lawyers and
understood the rights he was forgoing. There is no reason to
doubt that Ortega-Hernandez’s waiver of his right to appeal
his prison sentence was knowing, intelligent, and voluntary.
Ortega-Hernandez points out that the written judgment
states that “[t]he defendant has a right to appeal the sentence
imposed by this Court.” Appellant’s Br. 16 (quoting Pub.
App. 91). That fact is irrelevant. A judge’s statement made
at a sentencing hearing “could not have informed (or
misinformed) [the defendant’s] decision to waive [the] right
to appeal because that decision was made at the earlier plea
hearing.” Guillen, 561 F.3d at 531. The same is true of a
judge’s statement made after a sentencing hearing, as

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occurred here. Consequently, we will not entertain Ortega-
Hernandez’s challenge to the reasonableness of his term of
imprisonment. See id. at 532 (“[B]ecause we hold [the
defendant’s] waiver was knowing, intelligent, and voluntary,
we do not consider her arguments that the sentence was
substantively unreasonable because the district court failed to
give sufficient weight to her poor health, her personal history,
and her cooperation with authorities.”).
* * *
For the foregoing reasons, we remand the case to the
district court for correction of the error in Ortega-Hernandez’s
written sentence misidentifying a condition of supervised
release, and we dismiss the appeal as to the remaining issue.
So ordered.

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