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

                            FOR THE TENTH CIRCUIT                       February 13, 2014

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

             Plaintiff-Appellee,

v.                                                   Nos. 13-6167 & 13-6168
                                                 (D.C. Nos. 5:12-CR-00065-D-1 &
JOHNNIE RAY BRAGG, JR.,                                5:13-CR-00032-D-1)
                                                           (W.D. Okla.)
             Defendant-Appellant.


                             ORDER AND JUDGMENT*


Before HARTZ, O’BRIEN, and MATHESON, Circuit Judges.


      After entering into a plea agreement that included a waiver of his right to

appeal, Johnnie Ray Bragg, Jr. pleaded guilty to one count of conspiracy to possess

with intent to distribute and distribution of ecstasy, in violation of 18 U.S.C. § 846,

and one count of conspiracy to commit money laundering, in violation of 18 U.S.C.

§ 1956(h). Before his sentencing, he sent a threatening letter to a cooperating


*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
witness. As a result, he accepted another plea agreement with an appeal waiver and

pleaded guilty to one count of witness tampering, in violation of 18 U.S.C.

§ 1512(b)(1). At a joint sentencing, in the first case the district court ordered him to

serve 480 months of imprisonment. Then, in the second case, it imposed a

consecutive sentence of 46 months of imprisonment. Mr. Bragg appealed in both

cases. The government has moved to enforce both appeal waivers under United

States v. Hahn, 359 F.3d 1315, 1325, 1328 (10th Cir. 2004) (en banc) (per curiam).

      Hahn sets forth three factors to evaluate an appeal waiver: “(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.

                                  Appeal No. 13-6167

      Appeal No. 13-6167 arises from the first case, the drug-conspiracy and

money-laundering convictions that resulted in the 480-month sentence. In response

to the motion to enforce in this appeal, Mr. Bragg argues that none of the Hahn

factors are satisfied because his counsel was ineffective. He asserts that issues

regarding counsel’s performance are outside the scope of the appeal waiver; his

acceptance of the plea agreement was not knowing and voluntary because counsel did

not adequately explain the government’s case against him and made

misrepresentations to him; and ineffective assistance of counsel satisfies Hahn’s

definition of a miscarriage of justice.


                                          -2-
      A defendant cannot waive “ineffective assistance of counsel claims

challenging the validity of the plea or the waiver.” United States v. Cockerham,

237 F.3d 1179, 1187 (10th Cir. 2001). The docketing statement filed in this appeal,

however, indicates that Mr. Bragg seeks to raise other issues, including challenges to

the Guidelines calculations and the district court’s sentencing decisions. These

issues fit within the broad scope of the appeal waiver, which provides that Mr. Bragg

will not “[a]ppeal . . . his guilty plea, sentence and restitution imposed, and any other

aspect of his conviction” or “[a]ppeal . . . his sentence as imposed by the Court and

the manner in which the sentence is determined, provided the sentence is within or

below the advisory guideline range determined by the Court to apply to this case.”

Mot. to Enforce, Attach. I-1 at 9.

      Mr. Bragg also relies on his ineffective-assistance allegations in discussing the

other Hahn factors. He acknowledges that ineffective-assistance claims generally

should be brought in a collateral attack, rather than on direct appeal. See United

States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). This rule applies

even when a defendant seeks to invalidate an appeal waiver based on ineffective

assistance of counsel. See United States v. Porter, 405 F.3d 1136, 1144 (10th Cir.

2005); Hahn, 359 F.3d at 1327 n.13. Mr. Bragg nevertheless asserts that this court

should hear his claim in this direct appeal because “the issue was raised to the district

court and was ruled upon by the district court and a sufficient factual record exists.”

Aplt. Resp. at 8; see United States v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011)


                                          -3-
(“[T]his court has considered ineffective assistance of counsel claims on direct

appeal in limited circumstances, but only where the issue was raised before and ruled

upon by the district court and a sufficient factual record exists.”). The record,

however, urges otherwise.

      First, Mr. Bragg did not adequately assert an ineffective-assistance claim

before the district court. In moving to withdraw his guilty plea, Mr. Bragg made

assertions regarding his counsel’s performance, but he did not analyze the factors set

forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). The court noted that

Mr. Bragg “suggest[ed], without stating expressly, that [counsel] provided ineffective

assistance,” but that he made few specific allegations, and he would be required to

satisfy Strickland’s two-factor test. R. Vol. 1 at 200. The district court then

explicitly found that “Defendant has failed to assert an ineffective assistance claim

against [counsel].” Id.

      Second, the factual record remains undeveloped. One of Mr. Bragg’s

complaints on appeal is that the district court did not hold an evidentiary hearing on

his motion to withdraw his plea,

      thereby denying Mr. Bragg the opportunity to cross examine his trial
      counsel and the prosecutors on critical fact questions regarding
      statements they made to him and which he asserts were the reasons that
      caused him involuntarily to enter pleas of guilty and sign a plea
      agreement waiving his statutory rights to appeal. Without a[n]
      evidentiary hearing and the cross-examination of witnesses by
      Mr. Bragg, the district court’s decision that the plea waiver was
      enforceable was premature.



                                          -4-
Aplt. Resp. at 8-9. This argument confirms that, given the nature of Mr. Bragg’s

allegations, this appeal does not fit into the narrow exception for hearing

ineffective-assistance claims on direct appeal. “[A]ny ineffective assistance claim

would have to rely on extra-record exchanges between counsel and client that are

beyond our purview.” United States v. Novosel, 481 F.3d 1288, 1295 (10th Cir.

2007) (per curiam).

      For these reasons, we decline to depart from the general rule that

ineffective-assistance claims should be heard in collateral proceedings rather than on

direct appeal. To pursue his claims of ineffective assistance of counsel, Mr. Bragg

will have to proceed under 28 U.S.C. § 2255. The motion to enforce the appeal

waiver is granted and appeal No. 13-6167 is dismissed, without prejudice to

Mr. Bragg’s ability to bring a § 2255 motion claiming ineffective assistance of

counsel to the extent permitted by his collateral-attack waiver and applicable

precedent, including Cockerham.

                                 Appeal No. 13-6168

      Appeal No. 13-6168 arises from the witness-tampering conviction that carried

the consecutive 46-month sentence. In response to the government’s motion to

enforce the appeal waiver, Mr. Bragg asserts that the appeal is outside the scope of

the waiver because, by imposing a consecutive sentence for this conviction, the

district court upwardly deviated from the advisory Guidelines range of 46 to 57

months.


                                          -5-
       Mr. Bragg’s plea agreement specifically reserves his “right to appeal a

sentence above the advisory sentencing guideline range determined by the Court to

apply to this case.” Mot. to Enforce, Attach. II-1 at 6. Mr. Bragg’s 46-month

sentence, however, was at the bottom end of the Guidelines range determined by the

district court to apply to this case. Mr. Bragg cites no authority for the proposition

that ordering this sentence to run consecutive to the 480-month sentence makes this

sentence an above-Guidelines sentence, and we are not persuaded. Even if the

district court erred under 18 U.S.C. § 3584(a), as Mr. Bragg asserts, the appeal is

within his broad waiver of his right to “[a]ppeal . . . his . . . sentence . . . and any

other aspect of his conviction” and to “[a]ppeal . . . his sentence as imposed by the

Court and the manner in which the sentence is determined.” Mot. to Enforce, Attach.

II-1 at 5-6.

       Mr. Bragg makes no argument regarding the remaining Hahn factors in this

appeal, and we need not consider a Hahn factor that the defendant does not contest,

see Porter, 405 F.3d at 1143. The motion to enforce the appeal waiver is granted and

appeal No. 13-6168 is dismissed.




                                            -6-
                                    Conclusion

      The joint motion to enforce the appeal waivers in appeal Nos. 13-6167 and

13-6168 is granted and the appeals are dismissed.


                                              Entered for the Court
                                              Per Curiam




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