Introduction

In United States v. Quinonez-Velazquez, No. 25-1155 (10th Cir. Sept. 10, 2025) (per curiam), the Tenth Circuit granted the government’s motion to enforce an appellate waiver and dismissed the defendant’s sentencing appeal. The case arose from a guilty plea to a multi-drug conspiracy (methamphetamine, fentanyl, heroin, cocaine) and illegal reentry after removal following a felony conviction. The district court imposed concurrent terms of 240 months (drug conspiracy) and 120 months (illegal reentry).

On appeal, the defendant sought to challenge his sentence notwithstanding an appeal waiver in his plea agreement. He argued that the waiver’s scope did not bar his appeal because the district court calculated a higher total offense level (40) than the agreement contemplated (35); that any waiver was not knowing and voluntary due to confusion over drug-quantity language tied to an earlier indictment; and that enforcing the waiver would cause a miscarriage of justice, including alleged ineffective assistance at the plea stage and unfairness stemming from a higher-than-expected advisory guideline range.

Applying United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc), the panel concluded that the appeal fell within the waiver’s scope, the waiver was knowing and voluntary, and enforcement would not result in a miscarriage of justice. The decision offers a clear and practically important clarification: where an appellate waiver’s carve-out is expressly anchored to the “top end” of the guideline range for a fixed offense level (here, level 35) and the defendant’s sentence does not exceed that cap, the appeal is barred even if the district court ultimately calculates and sentences with reference to a higher offense level.

Summary of the Opinion

• Scope: The plea agreement waived any appeal of the sentence except if (1) the sentence exceeded the statutory maximum; (2) the sentence exceeded the top of the advisory guideline range that applies for the defendant’s criminal history category (as determined by the district court) at a total offense level of 35; or (3) the government appealed. The 240-month sentence did not exceed the relevant cap at level 35; thus, the appeal fell within the waiver’s scope.
• Knowing and Voluntary: The written agreement stated the waiver was knowing and voluntary, and the district court conducted an adequate Rule 11 colloquy. Although the defendant initially expressed confusion about a discrepancy between drug amounts in the plea agreement (drawn from an earlier indictment) and the operative Third Superseding Indictment, the court recessed to allow consultation with counsel, after which the defendant confirmed understanding and proceeded with the plea. The defendant did not meet his burden to show the waiver was unknowing or involuntary.
• Miscarriage of Justice: None of the Hahn exceptions applied. Ineffective-assistance claims to invalidate an appellate waiver are not ordinarily considered on direct appeal. The sentence did not exceed the statutory maximum, and the defendant did not demonstrate that the waiver was “otherwise unlawful” in a way that seriously affected the fairness, integrity, or public reputation of the proceedings.
• Disposition: Motion to enforce the appeal waiver granted; appeal dismissed.

Analysis

Precedents Cited and Their Role

• United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc): Establishes the three-part framework for enforcing appellate waivers: (1) scope; (2) knowing and voluntary; and (3) miscarriage of justice. Also instructs courts to strictly construe waivers and resolve ambiguities in favor of the defendant’s appellate rights. The panel rigorously applied Hahn at each step.
• United States v. Porter, 405 F.3d 1136 (10th Cir. 2005): Reinforces that scope analysis is governed by the waiver’s plain language and reiterates that ineffective-assistance arguments aimed at invalidating waivers are generally for collateral review, not direct appeal. The panel relied on Porter to reject the defendant’s attempt to litigate counsel-ineffectiveness at this stage.
• United States v. Sandoval, 477 F.3d 1204 (10th Cir. 2007): Defines when a waiver is “otherwise unlawful”—unlawfulness must “seriously affect the fairness, integrity or public reputation of judicial proceedings.” The panel used this standard to reject the claim that guideline-estimate variance or plea-hearing confusion rendered the waiver itself unlawful.
• United States v. Tanner, 721 F.3d 1231 (10th Cir. 2013): Places the burden on the defendant to show a waiver was not knowing and voluntary. The panel found the defendant failed to carry that burden.
• Federal Rule of Criminal Procedure 11: While not cited as a case, Rule 11’s colloquy requirements loom large. The panel looked to the adequacy of the Rule 11 colloquy (as Hahn instructs) in deciding whether the waiver was knowing and voluntary.

Legal Reasoning

1) Scope of the Waiver: The Fixed-Level Cap Controls

The waiver provided that the defendant “knowingly and voluntarily waives the right to appeal any matter in connection with this prosecution, conviction, or sentence,” subject to three exceptions. The second exception allowed an appeal only if “the sentence exceeds the top end of the advisory guideline range from the Sentencing Guidelines that applies for the defendant’s criminal history (as determined by the district court) at a total offense level of 35.”

The defendant argued the district court calculated a total offense level of 40, not 35, so his sentence was “outside the scope” of the waiver. The panel rejected this framing as disconnected from the waiver’s text. The operative carve-out is not triggered by the offense level used by the court—it is triggered by whether the actual sentence “exceeds the top end” of the guidelines range generated by assuming a fixed total offense level of 35 and using the criminal history category as determined by the court.

Two details underscore the textual clarity:

• The phrase “as determined by the district court” modifies the criminal history category, not the fixed offense level, which the parties stipulated for the carve-out as “35.”
• The carve-out is framed in terms of the “sentence” exceeding the “top end” of a specified range. It does not say the defendant may appeal whenever the district court calculates a higher offense level, nor does it condition the waiver on the court’s adoption of any particular guideline calculations.

Here, the sentence was 240 months. The panel observed that if the offense level were 35 and the criminal history category IV, the advisory range would have been 235–268 months; if the criminal history category III (as estimated in the plea), 210–262 months. The 240-month sentence falls within both ranges. Because the sentence did not exceed the “top end” of the applicable level-35 range, the second exception never activated. Strictly construed or not, the waiver’s plain language barred this appeal.

Practical drafting significance: Defense practitioners who intend to preserve an appeal if the court calculates an offense level above a specified figure must say so expressly. A clause keyed to “the top end at offense level 35” functions as a numeric cap on the sentence, not as a guarantee that the court will sentence using that offense level.

2) Knowing and Voluntary: Colloquy Cured Initial Confusion

Under Hahn, courts look to (i) whether the plea agreement recites a knowing and voluntary waiver, and (ii) whether the district court conducted an adequate Rule 11 colloquy. The defendant bears the burden to show otherwise (Tanner).

The defendant pointed to confusion at the plea hearing about a discrepancy between drug amounts in the written agreement (apparently drawn from an earlier indictment) and the Third Superseding Indictment to which he was pleading. At the hearing, he said he “honestly” did not understand the discrepancy. The district court paused the proceeding, permitted the defendant to confer with counsel, and then obtained confirmations that he understood the operative count and wished to plead guilty. The court also carefully explained that the appeal waiver covered “both the conviction for Counts 1 and 18 and the sentence, except in very limited circumstances,” reiterated that the defendant was waiving “most, if not all” appeal rights, and secured explicit acknowledgments of understanding.

The panel concluded there were no inadequacies in the Rule 11 colloquy and no ambiguity in the waiver language. In light of the written waiver and the colloquy record, the defendant did not meet his burden to show the waiver was unknowing or involuntary. The temporary confusion was addressed and cured on the record, and the defendant proceeded knowingly.

3) Miscarriage of Justice: No Procedural Unlawfulness in the Waiver Itself

Hahn recognizes enforcement may constitute a miscarriage of justice only in four scenarios:

• the district court relied on an impermissible factor such as race;
• ineffective assistance of counsel in negotiating the waiver renders it invalid;
• the sentence exceeds the statutory maximum; or
• the waiver is otherwise unlawful.

The defendant invoked ineffective assistance but, as Hahn (and Porter) emphasize, such claims are generally addressed on collateral review rather than on direct appeal, even when aimed at invalidating appellate waivers. The panel adhered to that rule; the defendant offered no persuasive reason to depart from it.

The “otherwise unlawful” argument fared no better. Under Sandoval, a waiver is “otherwise unlawful” only where the unlawfulness seriously impugns the fairness, integrity, or public reputation of judicial proceedings. Critically, the inquiry is whether the waiver itself is unlawful due to procedural error or impossibility—not whether the defendant later disagreed with guideline calculations or found the court’s estimates higher than anticipated. The panel characterized the defendant’s arguments as repackaging the already-rejected scope and voluntariness contentions. There was no procedural defect in the waiver’s adoption and no showing that no waiver was possible.

Because the sentence did not exceed any statutory maximum and no other Hahn miscarriage factors were implicated, enforcement did not cause a miscarriage of justice.

Impact and Practical Implications

Although issued as a nonprecedential order and judgment, the opinion is citable for persuasive value and carries clear guidance for plea drafting, plea colloquies, and appellate practice in the Tenth Circuit.

• Appeal-waiver drafting: Carve-outs keyed to “the top end of the guideline range at offense level X” operate as numeric sentence caps, not as conditions that the court actually sentence at offense level X. If the parties want the right to appeal whenever the court calculates an offense level above X, they must say so expressly, e.g., by preserving appeal if “the district court calculates a total offense level greater than 35” or if “the sentence is based on a guideline range corresponding to an offense level greater than 35.”
• Plea estimates vs. outcomes: Nonbinding guideline “estimates” in plea agreements do not limit the district court’s calculations. An unanticipated higher advisory range will not, standing alone, render an appellate waiver unenforceable where the colloquy was adequate and the waiver was acknowledged as knowing and voluntary.
• Rule 11 practice: When discrepancies arise (e.g., between an earlier indictment and a superseding indictment), pausing the hearing to ensure counsel consultation and then re-confirming understanding on the record is a strong curative measure. Clear articulation of appellate-waiver terms and exceptions, with explicit acknowledgments, fortifies enforceability.
• Ineffective assistance claims: Attempts to invalidate appellate waivers based on counsel performance will usually be deferred to collateral review. Defendants should consider 28 U.S.C. § 2255 motions for such claims rather than relying on direct-appeal arguments to avoid waiver enforcement.
• Defense risk assessment: A “fixed offense-level cap” carve-out can be a trap for the unwary. Even if the final guideline calculus is harsher (e.g., level 40), a sentence that lands within the “level-35 top end” range will preclude direct appeal. Counsel should model alternative guideline scenarios and explain the practical effect of the carve-out to clients.
• Government leverage and certainty: This decision underscores that prosecutors can draft predictable, enforceable caps for appellate risk by anchoring carve-outs to a fixed offense level’s top-end range. So long as the sentence stays at or below that numeric ceiling, the waiver is likely enforceable under Hahn.

Complex Concepts Simplified

• Appeal waiver: A defendant’s agreement, usually in a plea deal, to give up the right to appeal the conviction or sentence, subject to any negotiated exceptions.
• Scope of the waiver: What the waiver covers. Courts read the waiver’s actual words closely. If a carve-out is limited, defendants cannot expand it by implication.
• Advisory Sentencing Guidelines: A framework that suggests ranges for federal sentences. Calculated using a “total offense level” and a “criminal history category.” The ranges are advisory; the judge may vary, but the calculations matter.
• Total offense level vs. criminal history category: The offense level reflects the seriousness of the crime (including drug quantities, enhancements, etc.). The criminal history category reflects past criminal record. Both feed into a table that yields an advisory sentencing range.
• “Top end” of a guideline range: The highest number in the advisory range. If a waiver allows appeal only when the sentence exceeds this top end, any sentence at or below that number cannot be appealed under that exception.
• Rule 11 colloquy: The judge’s conversation with the defendant during a plea hearing to ensure the plea and any waivers are knowing, voluntary, and supported by a factual basis. Courts rely heavily on this record to decide whether a waiver is enforceable.
• Miscarriage of justice (in this context): A narrow set of circumstances where enforcing a waiver would be fundamentally unfair (e.g., reliance on race, a sentence above the statutory maximum, or a procedurally unlawful waiver).
• Collateral review vs. direct appeal: Direct appeals challenge the conviction/sentence shortly after judgment. Collateral review (often via 28 U.S.C. § 2255) is a separate proceeding typically used to raise issues like ineffective assistance of counsel that require development of facts outside the original record.

Conclusion

United States v. Quinonez-Velazquez reaffirms the Tenth Circuit’s disciplined enforcement of appellate waivers under Hahn while providing a practical clarification of a common drafting device: an appeal carve-out tied to the “top end” of a guideline range at a fixed offense level. The panel holds that where the waiver limits appeal to sentences exceeding the “top end” at level 35 (with the criminal history category as determined by the court), it is the numeric cap that matters—not the offense level the district court ultimately uses. A sentence below that cap is unappealable under the waiver even if the court calculates a higher offense level.

The decision also underscores two recurring themes. First, a thorough Rule 11 colloquy—especially when it cures on-the-record confusion—will sustain a finding that a waiver was knowing and voluntary. Second, ineffective-assistance challenges aimed at the waiver’s validity ordinarily belong in collateral proceedings, not on direct appeal.

For practitioners, the message is plain: draft with precision; explain guideline contingencies to clients; and recognize that fixed-level top-end carve-outs function as hard sentence caps for appellate purposes. For courts, the opinion reinforces the centrality of clear colloquies and textual fidelity to plea agreements. Even as a nonprecedential disposition, the ruling will carry persuasive weight in future plea and appellate-waiver litigation across the Tenth Circuit.