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

                            FOR THE TENTH CIRCUIT                          February 26, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 19-6183
                                                    (D.C. No. 5:18-CR-00244-D-1)
 SALVADOR CARNERO, SR.,                                     (W.D. Okla.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before MORITZ, KELLY, and CARSON, Circuit Judges.
                  _________________________________

      Salvador Carnero, Sr. pleaded guilty to distributing five or more grams of

methamphetamine. The district court sentenced him to 78 months’ imprisonment, a

downward variance from the advisory guideline range of 108 to 135 months.

Although his plea agreement contained a waiver of his right to appeal, he filed a

notice of appeal. The government then filed a motion to enforce the appeal waiver in

the plea agreement pursuant to United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir.

2004) (en banc) (per curiam).




      *
         This order and judgment is not binding precedent, except under the doctrines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.
      In response to the government’s motion, counsel for Mr. Carnero filed a brief

in accordance with Anders v. California, 386 U.S. 738 (1967), and stated that it

would be wholly frivolous to oppose the government’s motion to enforce. See

Anders, 386 U.S. at 744 (explaining that “if counsel finds his [client’s] case to be

wholly frivolous, after a conscientious examination of it, he should so advise the

court”). Counsel also filed a motion to withdraw. We then gave Mr. Carnero an

opportunity to file a pro se response to the motion to enforce. See id. (directing that

time be allowed for the defendant “to raise any points that he chooses”). The filing

deadline has passed and, to date, he has not filed a response. Anders explains that the

court should “then proceed[], after a full examination of all the proceedings, to

decide whether the case is wholly frivolous.” Id. We have reviewed the motion to

enforce, the plea agreement, the transcripts of the change-of-plea and sentencing

hearings, and counsel’s Anders brief. Based on our review of the proceedings, we

agree that there is no non-frivolous basis to contest the motion to enforce.

      We conclude that Mr. Carnero’s appeal of his sentence is within the scope of

the appeal waiver in his plea agreement; he knowingly and voluntarily waived his

appellate rights; and enforcing the waiver would not result in a miscarriage of justice.

See Hahn, 359 F.3d at 1325 (describing the factors this court considers when

determining whether to enforce a waiver of appellate rights). Accordingly, we grant

the motion to enforce the appeal waiver, grant counsel’s motion to withdraw, and

dismiss the appeal. We note that this dismissal is without prejudice to Mr. Carnero



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filing a motion for relief under 28 U.S.C. § 2255 to raise a claim for ineffective

assistance of counsel consistent with the terms of his plea agreement.1


                                            Entered for the Court
                                            Per Curiam




      1
         In his Anders brief, counsel for Mr. Carnero identified one potential basis for
avoiding the appeal waiver—ineffective assistance of counsel. But counsel also
correctly recognized that our precedent forecloses consideration of such an argument
on direct appeal, see United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005)
(“[A] defendant must generally raise claims of ineffective assistance of counsel in a
collateral proceeding, not on direct review. This rule applies even where a defendant
seeks to invalidate an appellate waiver based on ineffective assistance of counsel.”
(citation omitted)).

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