USA v. Gaither Jr et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America,
Plaintiff,
v.
Antonio Terrell Gaither Jr,
Defendant.
No. CR-25-00566-001-PHX-KML
ORDER
Criminal defendant Antonio Terrell Gaither, Jr. pleaded guilty to conspiring to
transport illegal aliens pursuant to a plea agreement in which he waived his right to appeal
his sentence. At sentencing, Gaither’s guidelines calculation included an aggravating role
enhancement because he was a manager or supervisor in the conspiracy, but the court
ultimately imposed a below-guidelines term of 12 months-and-a-day. Gaither now seeks
release pending appeal based on the application of the role enhancement. Because he
waived his ability to appeal his sentencing calculation and the manager/supervisor
adjustment properly applied, Gaither’s appeal raises no “substantial question” and his
motion is denied.
I. Factual and Procedural History
A federal grand jury indicted Gaither for conspiring to transport illegal aliens in
April 2025. (Doc. 7.) He ultimately pleaded guilty to that crime pursuant to an agreement
with the government. (Doc. 44 at 1.) The factual basis of that agreement contained
Gaither’s admissions he had “recruited and supervised” drivers who transported the
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undocumented aliens, including by “direct[ing]” them to pickup locations, “instruct[ing]”
them on delivery points, and “coordinat[ing]” payments to them. (Doc. 44 at 6.) At his
change-of-plea hearing, Gaither admitted those facts were true under oath. (Doc. 68 at 3,
21-23.)
Gaither’s plea agreement also contained an appellate waiver. (Doc. 44 at 4.) Most
relevant here, Gaither agreed to waive “any right to file an appeal . . . that challenges . . .
any aspect of [his] sentence, including the manner in which the sentence is determined,
including but not limited to appeals under 18 U.S.C. § 3742 (sentencing appeals)[.]” (Doc.
44 at 4.) He agreed the waiver would “result in the dismissal of any appeal” he might later
file “challenging the . . . sentence in this case.” (Doc. 44 at 4.) At the change-of-plea
hearing, the magistrate judge confirmed Gaither understood how the sentencing guidelines,
including offense levels, worked (Doc. 68 at 12-13); understood that if the district court
calculated the sentence differently to what defense counsel estimated, “that’s not a reason
to appeal” (Doc. 68 at 14); and understood he was “giving up [his] right to appeal . . .
[his] . . . sentence” (Doc. 68 at 20). At sentencing, the district court found Gaither had
“knowingly, voluntarily and intelligently waived his right to take an appeal” under the plea
agreement’s provisions. (Doc. 69 at 22.)
The pre-sentence report (“PSR”) disclosed before sentencing included a three-level
increase because Gaither was a manager or supervisor of a criminal activity involving five
or more participants or that was otherwise extensive. (PSR (Doc. 42) ¶ 24.) It also included
the facts of specific alien-smuggling events during which Gaither provided instructions to
drivers for where to pick up and drop off aliens (PSR ¶ 7-8, 10, 12), recruited drivers (PSR
¶ 8, 10, 12), and made sure the drivers were paid and extra proceeds returned to the
conspiracy (PSR ¶ 8, 10, 12). Before sentencing, Gaither filed a PSR objection
characterizing the conspiracy as non-hierarchical and arguing he played an average role
because he was in turn directed by others above him. (Doc. 37 at 2-3.) The government’s
response emphasized that Gaither had admitted to recruiting, supervising, directing, and
coordinating payments to the drivers and cited facts in the PSR supporting those
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admissions. (Doc. 41 at 2-3.)
The court permitted further argument on Gaither’s objection at the sentencing
hearing and ultimately overruled it. (Doc. 69 at 5-8.) It noted it had considered the relevant
guideline provision, U.S.S.G. § 3B1.1(b), and the Sentencing Commission’s note
explaining how to apply that adjustment. (Doc. 69 at 7.) The court cited portions of the
PSR and factual basis showing Gaither “did recruit, coordinate, [and] pay participants[,]”
recognized the PSR reflected more than five people participated, and found that drivers
potentially working for multiple organizations didn’t “negate Mr. Gaither’s recruitment
and coordination and the level of control that he had over them in this case.” (Doc. 69 at
7-8.) The court nonetheless varied downwards pursuant to 18 U.S.C. § 3553(a) and
imposed a sentence of 12-months-and-one-day. (Doc. 69 at 14, 17-18.)
Gaither filed a notice of appeal after the sentencing and now seeks release pending
appeal. (Docs. 52, 67.) He intends to argue the court incorrectly calculated the guidelines
when it applied the managerial role adjustment such that, after a correct calculation and
assuming the court varies downwards again, he could receive a probationary sentence.
(Doc. 67 at 2-3.)
II. Analysis
A criminal defendant sentenced to imprisonment who seeks release pending appeal
must show, among other factors, that his “appeal is not for the purpose of delay and raises
a substantial question of law or fact likely to result in . . . a sentence that does not include
a term of imprisonment” or “a reduced sentence to a term of imprisonment less than the
total of the time already served plus the expected duration of the appeal process.” 18 U.S.C.
§ 1343(b)(1)(B)(iii), (iv); United States v. Montoya, 908 F.2d 450, 450-51 (9th Cir. 1990)
(defendant bears the burden of proving entitlement to bail pending appeal). A “substantial
question” is “fairly debatable” and “of more substance than would be necessary to a finding
that it was not frivolous.” United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985)
(simplified). “Fairly debatable” questions may be “novel” or not “readily answered by
controlling precedent.” United States v. Federico, 479 F. Supp. 3d 819, 822 (N.D. Cal.
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2020) (simplified). In evaluating whether a question is substantial, a court may account for
the procedural posture of the asserted error on appeal, for example, whether it has been
sufficiently preserved below or is harmless. Id. (quoting United States v. Miller, 753 F.2d
19, 23 (3d Cir. 1985)). An enforceable appellate waiver prevents a defendant from showing
his appeal presents a “substantial question.” United States v. Mason, No. 2:16-CR-00002
KJM, 2022 WL 787923, at *2 (E.D. Cal. Mar. 15, 2022); United States v. Avetisyan, No.
CR 14-00329-ODW-2, 2019 WL 3957845, at *1 (C.D. Cal. Aug. 22, 2019).
Gaither cannot raise a “substantial question” related to the application of the role
enhancement because he waived his ability to appeal the guidelines calculations in his case.
An appeal is subject to dismissal when, pursuant to a plea agreement, a defendant makes a
knowing and voluntary waiver that “encompasses his right to appeal on the grounds
raised.” See United States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009). Pursuant to the
plea agreement, Gaither waived any right to file an appeal challenging “any aspect of [his]
sentence, including the manner in which the sentence is determined, including but not
limited to appeals under 18 U.S.C. § 3742 (sentencing appeals).” (Doc. 44 at 4.) Waivers
precluding appeal of “the manner in which [the sentence] is determined” or referencing 18
U.S.C. § 3742—even without using the words “guidelines calculation” (contra Doc. 71 at
1)—foreclose appellate arguments challenging the application of a role enhancement like
Gaither intends to make. See United States v. Fainga, No. 21-10304, 2022 WL 17090579,
at *1 (9th Cir. Nov. 21, 2022) (appellate waiver covering “the right to challenge [the
defendant’s] sentence, and the manner in which it was determined” barred appeal of
aggravating role enhancement); United States v. Alexander, 416 F. App’x 665, 666 (9th
Cir. 2011) (language waiving rights “conferred by [18 U.S.C. §] 3742” was “an
unambiguous waiver” of the “right to appeal the sentencing court’s Guidelines
calculations”). Gaither cannot show his appeal presents a “substantial question” because
he has waived the only argument he intends to make.
Gaither hints in reply that his waiver was not made knowingly or intelligently
because there was no indication he had read 18 U.S.C. § 3742. (Doc. 71 at 2.) But the
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magistrate judge explained that the district court imposing a sentence different from what
Gaither hoped for or his counsel estimated was “not a reason to appeal” and confirmed
Gaither understood he was “giving up [his] right to appeal . . . [his] . . . sentence.” (Doc.
68 at 14, 20.) A judge need not use magic words at a plea colloquy for an appellate waiver
to be knowing, voluntary, and intelligent; all the law requires is an understanding that the
waiver means sentencing appeals would be prohibited. See, e.g., United States v. Watson,
582 F.3d 974, 986-87 (9th Cir. 2009) (waiver pursuant to plea agreement that did not cite
18 U.S.C. § 3742 was nonetheless knowing and voluntary where judge explained defendant
could not appeal his sentence); United States v. Herrera-Lopez, 391 F. App’x 681, 682 (9th
Cir. 2010) (despite failure to address appellate waiver’s specific terms, change-of-plea
colloquy satisfied Rule 11(b)(1)(N) where judge conveyed defendant was “giving up the
majority of his rights to appeal the sentence” and defendant understood) (simplified).
Gaither confirmed he understood that he was waiving sentencing appeals several times
during the change-of-plea colloquy, and no more was required for a valid waiver. He can
present no “substantial question” regarding the guidelines calculation on appeal because
he waived doing so under his plea agreement.
Even if Gaither had not validly waived appeal of his guidelines calculation, his
appeal would present no “substantial question” because precedent readily shows the role
enhancement was merited based on the facts he admitted and which the PSR reflected. The
Ninth Circuit has multiple times decided in unpublished decisions—which cannot be
issued when a panel “[e]stablishes, alters, modifies or clarifies” the law, 9th Cir.
R. 36-2(a)—that a role enhancement is merited where a defendant recruited, supervised,
instructed, and paid co-conspirators. See, e.g., United States v. Moura, 456 F. App’x 652,
654 (9th Cir. 2011); United States v. Sopo, 431 F. App’x 596, 597 (9th Cir. 2011); United
States v. Roberson, 516 F. App’x 650, 651 (9th Cir. 2013). Gaither admitted to doing
exactly those things in the factual basis of his plea agreement, and the facts in his PSR
support his admissions. Even if not foreclosed, his appeal would not present a “substantial
question.”
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Gaither has not met his burden to show his appeal “raises a substantial question of
law or fact likely to result in” a sentence that is non-custodial or that will outlast his appeal.
See 18 U.S.C. § 1343(b)(1)(B)(iii), (iv).
Accordingly,
IT IS ORDERED denying Gaither’s Motion for Release Pending Appeal (Doc.
67).
IT IS FURTHER ORDERED the current self-surrender date is AFFIRMED.
Dated this 26th day of May, 2026.
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