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

                           FOR THE TENTH CIRCUIT                        May 14, 2014

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

             Plaintiff-Appellee,

v.                                                        No. 14-3066
                                               (D.C. No. 6:13-CR-10150-EFM-1)
MARIO HERNANDEZ,                                           (D. Kan.)

             Defendant-Appellant.


                           ORDER AND JUDGMENT*


Before HOLMES, EBEL, and BACHARACH, Circuit Judges.


      This matter is before the court on the government’s motion to dismiss

defendant Mario Hernandez’s appeal because it falls within the scope of the appeal

waiver contained in his plea agreement or because his claims must be brought in a

collateral proceeding rather than on direct appeal. We grant the government’s motion

and dismiss the appeal.


*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
      The defendant pleaded guilty to one count of distribution of 28.3 grams of a

mixture or substance containing methamphetamine, in violation of 21 U.S.C.

§ 841(a). The government agreed in the plea agreement to jointly recommend a

sentence at the bottom of a guidelines range computed based upon “the mixture or

substance, rather than the purity amount” of methamphetamine. Mot. to Enforce,

Ex. C at 3. At the defendant’s sentencing, the government asked the district court to

impose a 57-month sentence. The court denied the parties’ recommendation and

instead sentenced the defendant to 69 months’ imprisonment. The sentence imposed

was a downward variance from the 87- to 108-month guidelines range found by the

court, and was also below the statutory maximum penalty of 20 years’ imprisonment.

      In his plea agreement, under the heading Waiver of Appeal and Collateral

Attack, the defendant “knowingly and voluntarily waive[d] any right to appeal or

collaterally attack any matter in connection with this prosecution, the defendant’s

conviction, or the components of the sentence to be imposed herein including the

length and conditions of supervised release.” Id. at 5. He further “knowingly

waive[d] any right to appeal a sentence imposed which is within the guideline range

determined appropriate by the court.” Id. But the plea agreement also provides that,

notwithstanding the express waivers, “the parties understand that the defendant in no

way waives any subsequent claims with regards to ineffective assistance of counsel

or prosecutorial misconduct.” Id.




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      The government filed a motion to enforce the plea agreement under United

States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). In evaluating

a motion to enforce a waiver, 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 government also

argued that the appeal should be dismissed because the claim the defendant intends to

raise—ineffective assistance of counsel—must be brought in a collateral proceeding.

See United States v. Edgar, 348 F.3d 867, 869 (10th Cir. 2003).

      In response to the government’s motion, the defendant does not argue that his

appeal waiver was not knowing and voluntary, nor does he claim that enforcement of

his waiver would result in a miscarriage of justice because the district court relied on

an impermissible factor, his sentence exceeds the statutory maximum, or his waiver

is otherwise unlawful. See Hahn, 359 F.3d at 1325, 1327. Therefore, we need not

address these issues. United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005).

Rather, the defendant contends that his appeal does not fall within the scope of the

waiver. According to his docketing statement, the defendant intends to raise the

following issue in this appeal:

      Without specificity, appellant raises a pro se claim of ineffective
      assistance of counsel. Given the ultimate sentencing outcome, wherein
      the district court rejected the parties[’] agreement to a lesser guideline
      range based on a mixture, instead of purity drug calculation, appellant
      may be raising an ineffective assistance of counsel claim with respect to
      the plea negotiations reached by his counsel.

                                          -3-
Docketing Statement at 4. The defendant points to his express preservation of his

right to bring “claims with regards to ineffective assistance of counsel.” Mot. to

Enforce, Ex. C at 5. He notes further that enforcement of an appellate waiver results

in a miscarriage of justice “where ineffective assistance of counsel in connection with

the negotiation of the waiver renders the waiver invalid.” Hahn, 359 F.3d at 1327.

      We agree with the defendant that his stated appeal issue is within the scope of

the claims that he expressly did not waive in his plea agreement. He did not,

however, expressly preserve a right to bring an ineffective assistance of counsel

claim in his direct appeal. And the defendant acknowledges this court’s rule that

“[i]neffective assistance of counsel claims should be brought in collateral

proceedings, not on direct appeal. Such claims brought on direct appeal are

presumptively dismissible, and virtually all will be dismissed.” United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). “Indeed, we have followed this

practice even when the issues on direct appeal are sufficiently developed for us to

pass judgment, reasoning that we benefit from the views of the district court

regarding such claims.” Edgar, 348 F.3d at 869. The defendant advances no

argument that his case is the “rare exception” in which this court should consider his

ineffective assistance claim on direct appeal. Id.; see also United States v. Flood,

635 F.3d 1255, 1260 (10th Cir. 2011) (describing limited circumstances under which

ineffective assistance claims would be considered on direct appeal).



                                         -4-
      Accordingly, we grant the government’s motion to dismiss this appeal, without

prejudice to the defendant raising in a collateral proceeding any ineffective assistance

claims he elects to pursue.


                                               Entered for the Court
                                               Per Curiam




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