                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                          June 13, 2012

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                       No. 12-5064
                                               (D.C. No. 4:11-CR-00177-CVE-1)
RONALD PAUL MCALLISTER,                                  (N.D. Okla.)

             Defendant-Appellant.


                           ORDER AND JUDGMENT*


Before KELLY, EBEL, and MATHESON, Circuit Judges.



      Ronald Paul McAllister pleaded guilty to one count of bank robbery by force

and violence and intimidation. He was sentenced to fifty-seven months in prison.

Although his plea agreement contained a waiver of his appellate rights,

Mr. McAllister has filed an appeal challenging his sentence. The government has




*
       This panel has determined that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. This order and judgment
is not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R App. P. 32.1 and 10th Cir. R. 32.1.
moved to enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315

(10th Cir. 2004) (en banc) (per curiam). We grant the motion and dismiss the appeal.

      Under Hahn, we consider “(1) whether the disputed appeal falls within the

scope of the waiver of appellate rights; (2) whether the defendant knowingly and

voluntarily waived his appellate rights; and (3) whether enforcing the waiver would

result in a miscarriage of justice.” Id. at 1325. The miscarriage-of-justice prong

requires the defendant to show (a) his sentence relied on an impermissible factor such

as race; (b) ineffective assistance of counsel in connection with the negotiation of the

appeal waiver rendered the waiver invalid; (c) his sentence exceeded the statutory

maximum; or (d) his appeal waiver is otherwise unlawful and the error “seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.

at 1327 (quotation omitted).

      Mr. McAllister filed a pro se notice of appeal in which he stated that he

wanted to appeal his sentence on the ground that his attorney provided ineffective

assistance of counsel in the sentencing process. Although Mr. McAllister filed a

pro se notice of appeal, he is represented by counsel and his counsel has not filed a

motion to withdraw. Mr. McAllister’s attorney filed a response to the government’s

motion to enforce the appeal waiver, stating that there were no grounds to contest the

motion.

      First, counsel explains that Mr. McAllister’s appeal falls within the scope of

his appellate waiver because a claim for ineffective assistance of counsel in the


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sentencing process does not fall within any of the exceptions to the appeal waiver.

See Resp. at 3 (explaining that exception to the appeal waiver is limited to an

ineffective-assistance claim challenging the validity of the guilty plea or the appeal

waiver). Next, counsel states that he cannot dispute the government’s conclusion that

Mr. McAllister’s appeal waiver was knowing and voluntary based on the plea

colloquy and the language of the plea agreement. Finally, counsel states that he

cannot dispute the government’s assertion that enforcing the waiver would not result

in a miscarriage of justice.

      Counsel does, however, dispute the government’s assertion that there is

nothing to indicate that Mr. McAllister has received ineffective assistance of counsel

in connection with the negotiation of the appeal waiver. As counsel explains, such an

argument is premature because the record has not been developed and it is the

general rule in this circuit that ineffective-assistance claims should be brought on

collateral review. See id. at 5 (citing United States v. Porter, 405 F.3d 1136

(10th Cir. 2005)). Counsel contends that, consistent with his plea agreement,

Mr. McAllister retains the option to file a 28 U.S.C. § 2255 motion claiming that he

received ineffective assistance of counsel in connection with his guilty plea or appeal

waiver.

      We agree with counsel that there is no basis for Mr. McAllister to contest the

government’s motion to enforce. We also agree with counsel that the appeal waiver

does not bar Mr. McAllister from seeking collateral review of a claim for ineffective


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assistance of counsel in connection with his guilty plea or appeal waiver. See Porter,

405 F.3d at 1144; United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001).

Accordingly, we GRANT the government’s motion to enforce the appeal waiver and

DISMISS the appeal.

                                               Entered for the Court
                                               Per Curiam




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