USA v. Chalo Ponce

Filing

Per Curiam OPINION filed granting motion to dismiss based upon appeal waiver [4864210-2] filed by Ms. Caryn L. Hebets, decision not for publication. Eugene E. Siler , Jr., Circuit Judge; Jeffrey S. Sutton, Circuit Judge and Jane Branstetter Stranch, Circuit Judge.

Case: 12-6013

Document: 58-2

Filed: 10/21/2014

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0794n.06

FILED

Case No. 12-6013
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHALO PONCE,
Defendant-Appellant.

)
)
)
)
)
)
)
)
)
)
)

Oct 21, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
TENNESSEE.

BEFORE: SILER, SUTTON and STRANCH, Circuit Judges.
PER CURIAM. Chalo Ponce challenges one of his two convictions and sentences for
possessing a firearm in furtherance of a drug trafficking crime. See 18 U.S.C. § 924(c). Because
Ponce knowingly and voluntarily waived his right to appeal his conviction and sentence, we
dismiss the appeal.
In 2012, Chalo Ponce pled guilty to several drug-related offenses, including two counts
of distributing cocaine. R. 97 ¶¶ 5(c), (e). Ponce also pled guilty to two counts of possessing a
firearm in furtherance of a drug trafficking crime—one count for each cocaine offense. Id.
¶¶ 5(d), (f); see 18 U.S.C. § 924(c)(1)(a). Ponce’s plea agreement stated that “the defendant
agrees not to file a direct appeal of the defendant’s conviction or sentence except the defendant

Case: 12-6013

Document: 58-2

Filed: 10/21/2014

Page: 2

Case No. 12-6013
United States v. Ponce
retains the right to appeal a sentence imposed above the sentencing guideline range or any
applicable mandatory minimum sentence (whichever is greater) determined by the district court.”
R. 97 ¶ 14.
Before accepting Ponce’s plea, the district judge conducted a colloquy in which Ponce
expressly agreed that he was waiving his right to appeal his convictions and sentences. R. 194 at
581–82. Ponce also agreed that his two counts of possessing a firearm in violation of 18 U.S.C.
§ 924(c) subjected him to two consecutive mandatory minimum sentences totaling thirty years.
R. 194 at 579–80; see 18 U.S.C. § 924(c)(1)(C)(i). At sentencing, the court imposed the
minimum sentences for both counts. R. 195 at 596–97. Ponce now appeals.
On appeal, Ponce claims that he should not have been convicted and sentenced for one of
the two § 924(c) counts because the two underlying cocaine offenses were part of the same
conspiracy. Appellant Br. at 9. This challenge, however, is “a direct appeal of the defendant’s
conviction [and] sentence,” R. 97 ¶ 14, which Ponce waived the right to file.
Ponce argues we should disregard his waiver because he retained the right to appeal a
sentence above “any applicable mandatory minimum,” id., and his sentence for two § 924(c)
convictions exceeds the mandatory minimum for one. Appellant Reply Br. at 3. But to reach
Ponce’s conclusion, we would first need to hold that one of his two convictions was wrongly
imposed—which is exactly what he promised the government not to ask us to do. R. 97 ¶ 14.
We therefore may not set his plea waiver aside. See United States v. Toth, 668 F.3d 374, 379
(6th Cir. 2012).
For these reasons, we dismiss the appeal.

2