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

                                    TENTH CIRCUIT                         December 11, 2014

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff – Appellee,
                                                             No. 14-3202
 v.                                              (D.C. Nos. 6:14-CV-01180-MLB and
                                                        6:12-CR-10057-MLB)
 ENI OYEGOKE-ENIOLA,                                           (D. Kan.)
           Defendant – Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.



       Eni Oyegoke-Eniola, proceeding pro se, seeks a certificate of appealability

(“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2255 habeas motion. We

deny a COA and dismiss the appeal.

                                             I




       *
         This order is not binding precedent except under the doctrines of law of the case,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.
       Oyegoke-Eniola, a Nigerian citizen, earned a Bachelor of Science degree in

Computer Engineering in Nigeria in 2001. He then moved to Great Britain, where he

pursued graduate study in Information Security and, later, a PhD in Intrusion Detection

and Network Security. He did not complete his PhD because a British court convicted

him in 2007 of offenses involving credit card fraud and deception. After returning to

Nigeria, he came to the United States in 2009 on a non-immigrant visa to pursue an MBA

at Washington University in St. Louis. When he applied for his 2009 visa, he denied

having been arrested for, or convicted of, any crime.

       During his MBA program, Oyegoke-Eniola began spending time in Wichita,

Kansas, where he eventually sublet an apartment. Oyegoke-Eniola and others in Wichita,

including his friend Hakeem Makanjuola, engaged in identity theft, credit card fraud, and

other fraudulent activities. On June 28, 2011, United States Secret Service Special Agent

Greg Tiano learned about the fraud, and on July 21, 2011, Tiano observed Oyegoke-

Eniola picking up a package at his sublet apartment that Tiano believed contained

fraudulently-purchased gold coins. Tiano arrested Oyegoke-Eniola, briefly interviewed

him, and then, with Oyegoke-Eniola’s consent, searched his sublet apartment as well as a

different apartment where Oyegoke-Eniola lived with his fiancée. Oyegoke-Eniola was

later interviewed at a Secret Service office, and confirmed that he had bought gold coins

and gift cards from Makanjuola, sold gold coins on Makanjuola’s behalf, and received

various packages.


                                            -2-
       Oyegoke-Eniola was released without being charged. On August 11, 2011, the

government sent Oyegoke-Eniola’s attorney a letter promising that his statements during

a later proffer interview would not be used against him in the government’s case-in-chief.

Later that month, after marrying his fiancée, Oyegoke-Eniola prepared, signed under

penalty of perjury, and submitted an I-485 Application to Register Permanent Residence

or Status. In the portion of the form asking about his prior criminal conduct, Oyegoke-

Eniola stated that he was “arrested but not charge[d]” and “released after be[ing]

interviewed about some set of people I came in contact with while living in Wichita,

KS.” He again failed to mention his overseas convictions. On August 31, 2011,

Oyegoke-Eniola was interviewed again by Tiano and another agent, subject to the

immunization agreement.

       Oyegoke-Eniola was accepted into an LLM program, to begin in the summer of

2012, but never matriculated, because on March 1, 2012, a federal grand jury indicted

him. He was arrested the same day and has been in custody ever since. On June 14,

2012, he pled guilty to one count of providing a false statement in an immigration

document in violation of 18 U.S.C. § 1546, and one count of aiding and abetting mail

fraud in violation of 18 U.S.C. § 1341. In his plea agreement, he waived the right to

appeal or collaterally attack his sentence. Oyegoke-Eniola was sentenced to 60 months in

prison. On appeal, this court vacated his sentence and remanded for resentencing,

because the district court abused its discretion by improperly applying two sentencing

enhancements. United States v. Oyegoke-Eniola, 734 F.3d 1262, 1264, 1266-67 (10th
                                            -3-
Cir. 2013). We also addressed Oyegoke-Eniola’s claim that the district court improperly

relied upon his immunized statements, and instructed the district court on remand to

make a record of whether it could, or wished to, use those statements for sentencing

purposes. Id. at 1268.

       On remand, the district court determined that Oyegoke-Eniola’s correct sentencing

range was either 15-21 months or 18-24 months. It sentenced Oyegoke-Eniola to time

served, which was at that point just over 25 months, and to three years supervised

release.1 The district court adopted the Amended Presentence Investigation Report

“without change” and also imposed several special conditions of supervision, including

that “upon completion of the term of imprisonment, the defendant is to be surrendered to

a duly authorized immigration official for deportation.”

       Oyegoke-Eniola did not appeal from his re-sentencing. He moved for habeas

corpus relief under § 2255 on June 17, 2014. On September 10, 2014, the district court

denied Oyegoke-Eniola’s motion. He timely appealed.

                                             II

       Oyegoke-Eniola may not appeal the denial of § 2255 relief without a COA. 28

U.S.C. § 2253(c)(1)(B). We will issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). To satisfy this


       1
         Although Oyegoke-Eniola is no longer incarcerated for the crimes at issue, he
may nonetheless maintain a § 2255 claim because his term of supervised release has yet
to expire. United States v. Cervini, 379 F.3d 987, 989 n.1 (10th Cir. 2004).

                                            -4-
standard, Oyegoke-Eniola must demonstrate “that reasonable jurists could debate whether

(or, for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Because

Oyegoke-Eniola proceeds pro se, we construe his filings liberally. See Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991).2

       As a threshold matter, Oyegoke-Eniola cannot collaterally attack his sentence

unless he can avoid the waiver of collateral review contained in his plea agreement.

Oyegoke-Eniola contends that enforcing the waiver would constitute a “miscarriage of

justice.” United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004) (en banc) (per

curiam); see also United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (holding

that Hahn applies to waivers of collateral review). A miscarriage of justice occurs “[1]

where the district court relied on an impermissible factor such as race, [2] where

ineffective assistance of counsel in connection with the negotiation of the waiver renders

the waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4] where

the waiver is otherwise unlawful.” Hahn, 359 F.3d at 1327. Oyegoke-Eniola bears the


       2
         Despite the district court’s implication to the contrary, Oyegoke-Eniola’s
educational credentials do not justify construing his filings otherwise. Cf. Diversey v.
Schmidly, 738 F.3d 1196, 1198-99 (10th Cir. 2013) (liberally construing the filings of a
pro se litigant who was a Ph.D. candidate). Although we may decline to construe the pro
se pleadings of a licensed attorney liberally, Smith v. Plati, 258 F.3d 1167, 1174 (10th
Cir. 2001), Oyegoke-Eniola is not a licensed attorney, and never entered the LLM
program to which he was admitted.

                                             -5-
burden of showing that enforcement of the waiver would result in a miscarriage of

justice. United States v. Ochoa-Colchado, 521 F.3d 1292, 1299 (10th Cir. 2008).

                                              A

       On appeal, Oyegoke-Eniola first argues that the waiver merits an exception under

the fourth, “otherwise unlawful” prong of Hahn’s miscarriage-of-justice test. He

contends that his conviction is invalid because he did not sign the I-485 form under oath

and because his statement on the I-485 was not false, but rather literally true without

being fully responsive to the question asked. Oyegoke-Eniola also argues that his

sentence was impermissibly based on immunized statements.

       These arguments misapprehend the “otherwise unlawful” exception, which “looks

to whether the waiver is otherwise unlawful, not to whether another aspect of the

proceeding may have involved legal error.” United States v. Smith, 500 F.3d 1206,

1212-13 (10th Cir. 2007) (quotation omitted). Oyegoke-Eniola offers no reason to

believe that the waiver itself was unlawful, nor does he contend that it constituted “error

seriously affect[ing] the fairness, integrity, or public reputation of judicial proceedings.”

Id. at 1212. Instead, he argues that the substance of his sentence was inadequately

supported. “An appeal waiver is not ‘unlawful’ merely because the claimed error would,

in the absence of waiver, be appealable. To so hold would make a waiver an empty

gesture.” United States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir. 2007).

                                              B


                                             -6-
       Oyegoke-Eniola also argues that his appellate waiver is subject to the first,

“impermissible factor” prong of the Hahn miscarriage-of-justice test because the district

court relied on his noncitizen status in imposing his sentence. Our opinion in Hahn held

that it is a miscarriage of justice for a sentencing judge to rely “on an impermissible

factor such as race.” 359 F.3d at 1327. We have not provided a complete list of factors

that are considered impermissible. In one case, we concluded that gender was an

impermissible factor. United States v. Johnson, 756 F.3d 1218, 1219-20 (10th Cir. 2014).

And our unpublished cases provide examples of what our practice has been. See, e.g.,

United States v. Bell, 437 F. App’x 658, 663 (10th Cir. 2011) (unpublished) (considering

race to be an impermissible factor); United States v. Kuhn, 554 F. App’x 719, 721 (10th

Cir. 2014) (unpublished) (concluding that “garden variety sentencing objections” are not

impermissible factors).

       Alienage is widely regarded as an impermissible factor at sentencing among our

sibling circuits. In United States v. Onwuemene, 933 F.2d 650 (8th Cir. 1991), the

Eighth Circuit reviewed a district court sentence that referenced the defendant’s alien

status as follows:

       The other thing that I feel that warrants imposition at the high end of the
       guideline range: You are not a citizen of this country. This country was
       good enough to allow you to come in here and to confer upon you . . . a
       number of the benefits of this society, form of government, and its
       opportunities, and you repay that kindness by committing a crime like this.
       We have got enough criminals in the United States without importing any.




                                             -7-
Id. at 651. The Eighth Circuit vacated and remanded, concluding that imposing a harsher

sentence based on the defendant’s alienage would be unconstitutional. Id. at 651-52; see

also United States v. Trujillo-Castillon, 692 F.3d 575, 579-80 (7th Cir. 2012) (vacating

sentence that may have relied on Cuban-immigrant defendant’s national origin); United

States v. Borrero-Isaza, 887 F.2d 1349, 1356-57 (9th Cir. 1989) (vacating alien’s

sentence that impermissibly relied on his national origin).3 Although we have not

published opinions in the field, our non-precedential practice has been to the same effect.

For example, in United States v. Garcia-Cardenas, 242 F. App’x 579 (10th Cir. 2007)

(unpublished), we concluded that “[s]entencing a defendant more harshly because of his

alien status violates the defendant’s constitutional right to due process.” Id. at 583.

Accordingly, we will assume that for the purpose of the first prong of Hahn’s

miscarriage-of-justice test, the district court was not permitted to penalize Oyegoke-

Eniola based on his alienage.

       Oyegoke-Eniola did not object to any of the district court’s statements during his

sentencing hearing. When a defendant fails to object to a district court’s discussion of an

allegedly impermissible factor during sentencing, we review for plain error. Johnson,

756 F.3d at 1220. “Plain error occurs when there is (1) error, (2) that is plain, which (3)

       3
         Although these cases involve direct challenges to sentencing rather than
challenges to a waiver of appeal, courts have also refused to enforce appellate waivers for
sentences based on alienage or national origin. See, e,g., United States v. Gonzalez, 76 F.
App’x 386, 388 (2d Cir. 2003) (unpublished) (“[W]e have declined to find waiver of the
right to appeal a sentence that was imposed based on constitutionally impermissible
factors, such as national origin bias.”).

                                             -8-
affects substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Nickl, 427 F.3d 1286, 1298 (10th

Cir. 2005) (quotations omitted).

       Whether the district court impermissibly relied on Oyegoke-Eniola’s alienage in

determining his sentence, and thereby committed error, is debatable. The district court

stated: “I have seen all kinds of people come through this court from foreign countries . .

. [b]ut I haven’t had anybody . . . that has your level of education, your level of

intelligence, and your level of essentially living your life making – by making –

committing crimes.” This remark suggests that the district court compared Oyegoke-

Eniola’s crimes to those of other foreign-born defendants, and it is debatable that the

district court may have relied on this comparison in determining Oyegoke-Eniola’s

sentence. The court also told him that “[o]f all the people who come to the United States

legally and want to better themselves and get into good schools, you certainly didn’t

deserve any of that. So I’m going to do everything I can to get you out of the United

States permanently. Do you understand that?” Given the comparison of Oyegoke-Eniola

to other immigrants, it is debatable that this statement could imply that Oyegoke-Eniola’s

sentence might have been impermissibly based on his alienage.

       However, the district court’s comments did not affect Oyegoke-Eniola’s

substantive rights. He was sentenced to time served, and his term of three years of

supervised release was within the range specified by the Guidelines. Although the

special condition that Oyegoke-Eniola must be surrendered to immigration officials upon
                                              -9-
completion of his term of imprisonment might appear to affect his substantive rights,

such a condition is not unusual. For example, in one unpublished opinion, we affirmed

the sentence of a defendant who, like Oyegoke-Eniola, was sentenced to approximately

time served, after which he was to be put in custody pending removal proceedings. See,

e.g., United States v. Sun, 354 F. App’x 295, 301, 306 (10th Cir. 2009) (unpublished).

Moreover, Immigration and Customs Enforcement filed a detainer on Oyegoke-Eniola

prior to his resentencing hearing. Because the district court’s mention of impermissible

factors did not constitute plain error, the appellate waiver is enforceable. Cf. United

States v. Salama, 974 F.2d 520, 522 (4th Cir. 1992) (upholding sentencing of a noncitizen

defendant despite judge’s remarks referencing his noncitizen status and observing that

“[w]hile we do not approve of the irrelevant remarks introduced by the sentencing judge

into the proceedings—indeed, we consider them to be inappropriate—we conclude that

they did not in this case become an improper factor in sentencing and were therefore

harmless error”).

                                            III

       For the foregoing reasons, we DENY a COA and DISMISS the appeal. We

GRANT Oyegoke-Eniola’s motion for leave to proceed in forma pauperis.

                                                   Entered for the Court


                                                   Carlos F. Lucero
                                                   Circuit Judge


                                            -10-
