United States v. Jesus Sotelo-Valdovinos

Eduardo Penaloza-Romero was a leader of a drug trafficking organization that

transported methamphetamine from California and distributed it in Minneapolis and

St. Paul, Minnesota. Jesus Sotelo-Valdovinos assisted by arranging a delivery of

methamphetamine from California to Minnesota and encouraging more trafficking

after the driver was arrested. Penaloza-Romero and Sotelo-Valdovinos were indicted

and pleaded guilty to conspiracy to distribute methamphetamine in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1), and 846. Each signed a plea agreement that included

a waiver of the right to appeal. In relevant part, each waiver stated that the defendant

“waives the right to appeal or to contest, directly or collaterally, his guilty plea or

sentence on any ground, unless the sentence of imprisonment exceeds” 327 months

imprisonment for Penaloza-Romero and 210 months imprisonment for Sotelo-

Valdovinos. The district court sentenced Penaloza-Ro 1 mero to 196 months in prison

and Sotelo-Valdovinos to 75 months in prison. Both appeal. We enforce the appeal

waivers and dismiss the appeals.

The right to appeal may be waived through a plea agreement. United States v.

Andis, 333 F.3d 886, 889 (8th Cir.) (en banc), cert. denied, 540 U.S. 997 (2003). We

review the validity of an appeal waiver de novo. United States v. Sisco, 576 F.3d

791, 795 (8th Cir. 2009). In reviewing an appeal waiver, “we must confirm that the

1The Honorable Susan Richard Nelson, United States District Judge for the

District of Minnesota.

-2-

appeal falls within the scope of the waiver and that both the waiver and plea

agreement were entered into knowingly and voluntarily.” Andis, 333 F.3d at 889-90.

Here, the change of plea hearings and plea agreements confirm that Penaloza-Romero

and Sotelo-Valdovinos knowingly and voluntarily accepted the plea agreements and

waived their rights to appeal. The prison sentences imposed are well within the scope

of the appeal waivers. Id. at 892. However, we will not enforce an appeal waiver if

doing so would result in a miscarriage of justice. Id. at 890.

Penaloza-Romero argues the district court procedurally erred in considering

grounds for a variance under 18 U.S.C. § 3553(a) before determining whether he

should receive a departure for substantial assistance under U.S.S.G. § 5K1.1. He

argues that his 196-month sentence is substantively unreasonable when the § 5K1.1

and § 3553(a) variance factors are properly considered. Enforcing the appeal waiver

will not result in a miscarriage of justice because Penaloza-Romero was sentenced to

196 months for an offense that could have resulted in a sentence of life imprisonment.

See 21 U.S.C. § 841(b)(1)(A); Sisco, 576 F.3d at 795.

Sotelo-Valdovinos is a hechicero -- a spiritual healer in the Mexican Santa

Muerte folk religion. As a hechicero, he provided spiritual advice to clients in

California, including two who were involved in the drug trafficking. At sentencing,

defense counsel emphasized Sotelo-Valdovinos’s role as a spiritual advisor in arguing

for a downward variance. In explaining why it was denying a variance, the district

court commented that, as articulated by defense counsel, Sotelo-Valdovinos “got

esteem as an important spiritual leader and healer in . . . a world of drug trafficking,

and so I do think there is a risk that [he] might reoffend . . . . [T]hat is an aggravating

circumstance in this case that balances out with the mitigating circumstance.”

Citing this comment, Sotelo-Valdovinos argues the district court abused its

discretion when it impermissibly considered his Santa Muerta faith as a sentencing

factor, making enforcement of his appeal waiver a miscarriage of justice. In this

-3-

circuit, miscarriage of justice is an “extremely narrow” exception we have thus far

applied only to an illegal sentence; “[a]ny sentence imposed within the statutory

range is not subject to appeal.” Andis, 333 F.3d at 892. Some circuits have

recognized, but to our knowledge never applied, the principle that basing a sentence

on a constitutionally impermissible factor such as race would fall within the

miscarriage of justice exception. See Andis, 333 F.3d at 891, citing United States v.

Teeter, 257 F.3d 14, 25 n.9 & 10 (1st Cir. 2001). Here, the district court did not base

its sentencing decision on Sotelo-Valdovinos’s faith or religion. Rather, the court

concluded that the environment in which Sotelo-Valdovinos functioned as a “spiritual

healer” made it more likely that he would reoffend. That is a legitimate sentencing

consideration. Sotelo-Valdovinos’s 75-month sentence was within the scope of his

knowing and voluntary appeal waiver, and enforcing the waiver will not otherwise

result in a miscarriage of justice because the sentence was substantially below 210

months, the sentence above which he preserved his right to appeal.

For these reasons, we enforce the appeal waivers and dismiss both appeals.