                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         APR 15 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                     No. 02-6045
                                                  (D.C. No. CR-01-110-C)
 JAMES CRAIG JEFFERSON, also                            (W.D. Okla.)
 known as Craig Jefferson,

          Defendant - Appellant.



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                     No. 02-6047
                                                  (D.C. No. 01-CR-110-C)
 DYKE CRANE, JR.,                                       (W.D. Okla.)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      Defendants-Appellants James Craig Jefferson and Dyke Crane, Jr.

(“Defendants”) appeal from their respective sentences imposed after each pled

guilty to distributing cocaine base in violation of 21 U.S.C. § 841(a)(1). The

United States (“the government”) filed separate motions to dismiss the appeals for

lack of jurisdiction based on Defendants’ plea agreements which contained

identical waivers of the right to appeal their convictions and sentences. We

consolidated Defendants’ cases for purposes of this appeal. Our jurisdiction

arises under 28 U.S.C. § 1291, and we dismiss.



                                    Background

      On June 20, 2001 a grand jury returned a 21-count indictment against

Defendants and seven other individuals. Mr. Jefferson was charged in Counts 1

and 9 of the indictment, and pursuant to a plea agreement with the government

pled guilty to Count 9, intentionally distributing approximately 1.1 grams of

cocaine base to a confidential informant. IV R. at 6 (Jefferson). Mr. Crane was

charged in Counts 1, 2, and 4, and pled guilty to Count 2, intentionally

distributing approximately 2.3 grams of cocaine base. IV R. at 6 (Crane). In

their plea agreements Mr. Jefferson and Mr. Crane agreed to waive the right to

appeal or collaterally challenge: (1) “Defendant’s guilty plea and any other aspect


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of his conviction, including but not limited to any rulings on pretrial suppression

motions,” and (2) “Defendant’s sentence as imposed by the Court and the manner

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

applicable guideline range determined by the Court to apply to this case.” R. Vol.

I R. Doc. 69 (Crane) (Plea Agreement) at 5-6, Govt.’s Motion to Dismiss for Lack

of Jurisdiction Over the Merits, Ex. B at 5 (Jefferson). Both waivers permitted an

appeal or collateral challenge in the event of an upward departure from the

applicable guideline range, or a challenge based on subsequent “changes in the

law reflected in Tenth Circuit or Supreme Court cases” deemed to have

retroactive effect. Id. at 6.

      On appeal Mr. Jefferson argues that in determining his adjusted base

offense level under U.S.S.G. § 2D1.1(c)(3), the district court erred in relying on

unreliable hearsay statements made by an unavailable co-defendant that attributed

to him over 700 grams of cocaine base. He argues that by relying on these

unreliable statements, the district court violated both the Sentencing Guidelines

and the Due Process Clause. Aplt. Br. at 9 (Jefferson). Mr. Crane argues that his

trial counsel provided ineffective assistance during sentencing by failing to object

to his criminal history calculation and by failing to make specific objections to

the calculation of the amount of drugs for which he was allegedly responsible.

Aplt. Br. at 7 (Crane). Rather than addressing the merits of these claims, the


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government filed responses to Defendants’ briefs renewing the arguments

contained in its initial motions to dismiss. Specifically, the government argued

that the waivers of appellate rights were knowing and voluntary, and thus

enforceable, and that none of the express exceptions to the exercise of such rights

are applicable. Government’s Response to Defendant’s Opening Brief at 3

(Jefferson), Government’s Response to Defendant’s Opening Brief at 3 (Crane).

      As to the government’s jurisdictional argument, Defendants advance

different claims as to why they should be permitted to pursue their appeals

notwithstanding the waivers. Mr. Jefferson argues that because this circuit has

held that such waivers will not preclude review of sentences that exceed the

statutory maximum or a claim that the waiver was entered into without effective

assistance of counsel, neither should such a waiver preclude review of a claim

that a sentence violates the Confrontation Clause of the Sixth Amendment or the

Due Process Clause of the Fifth Amendment. Defendant-Appellant’s Response to

Appellee’s Motion to Dismiss for Lack of Jurisdiction Over the Merits at 4

(hereinafter “Jefferson’s Response”). Mr. Crane argues that because the district

court at his change-of-plea hearing failed to affirmatively indicate that he was

foreclosed from pursuing an appeal of his sentence, Mr. Crane may “at a

minimum . . . prosecute this appeal based upon any sentencing error.” Appellant

Dyke Crane’s Response to Motion to Dismiss at 2 (hereinafter “Crane’s


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Response”). Second, Mr. Crane argues that the waiver contained in the plea

agreement is unenforceable because it is “unconstitutionally broad,” and that it

should not be enforced because he will raise issues of a “constitutional nature” on

appeal. Id. at 2-3.

                                     Discussion

      We have held that if a waiver of appellate rights is effective, “we would

certainly overreach our jurisdiction to entertain [an] appeal when the plea

agreement deprived [the] [d]efendant of the right to appeal.” United States v.

Rubio, 231 F.3d 709, 710 (10th Cir. 2000). Nonetheless, we have jurisdiction to

determine our jurisdiction. United States v. Garcia, 919 F.2d 1478, 1480 (10th

Cir. 1990). Regarding such waivers, we have held that “it is well established that

a defendant’s waiver of the statutory right to direct appeal contained in a plea

agreement is enforceable if the defendant has agreed to its terms knowingly and

voluntarily.” United States v. Cockerham, 237 F.3d 1179, 1181 (10th Cir. 2001).

However, such waivers are subject to certain public policy exceptions permitting

an appeal where (1) a district court has “relied on an impermissible factor such as

race,” (2) “ineffective assistance of counsel in connection with the negotiation of

the waiver renders the waiver invalid,” (3) the sentence exceeds the statutory

maximum, or (4) the waiver is “otherwise unlawful.” United States v. Elliott, 264

F.3d 1171, 1173 (10th Cir. 2001).


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1.    Mr. Jefferson

      Mr. Jefferson does not argue that the waiver of his right to appeal was

unknowing or involuntary. Likewise, he has not alleged racial bias or ineffective

assistance in connection with his decision to waive his rights, and the district

court did not sentence him beyond the statutory maximum. Moreover, neither of

the additional exceptions set forth in the waiver itself are implicated here. Mr.

Jefferson argues only that the waiver should not be enforced because the

sentencing errors of which he complains allegedly violate the Sentencing

Guidelines and infringe upon his constitutional rights. We disagree.

      The fact that Mr. Jefferson has alleged that the district court erred in its

application of the Sentencing Guidelines does not entitle him to raise the issue on

appeal. This court has never recognized an exception permitting review

notwithstanding a valid waiver merely because the defendant has alleged that the

district court has erred in sentencing the defendant. In fact, this court has

specifically held that where a waiver is knowing and voluntary, it is effective to

preclude review of such a claim. See, e.g., United States v. Atterberry, 144 F.3d

1299, 1300 (10th Cir. 1998) (dismissing the defendant’s appeal based on a waiver

of his appellate rights where the defendant sought to appeal the district court’s

rulings on his objections to his base offense level calculation under the

Sentencing Guidelines). We therefore reject this argument.


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      Mr. Jefferson also claims that because he has alleged that the district

court’s reliance on various hearsay statements violated his right to due process,

the waiver should not preclude review of that claim. However, our prior cases

discussing the enforceability of such waivers make clear that the fact that a

defendant’s claim on appeal is constitutional in nature does not place it beyond

the reach of a knowing and voluntary waiver.

      In United States v. Cockerham, we held that a waiver of the right to bring a

federal habeas action is enforceable where it is expressly stated in the plea

agreement and both the plea and the waiver “were knowingly and voluntarily

made.” 237 F.3d at 1183. Applying this rule we held that the defendant waived

his right to challenge his sentence, despite the fact that his petition claimed that

his attorney provided ineffective assistance of counsel in violation of the Sixth

Amendment. Id. at 1181, 1191. We did acknowledge that an ineffective

assistance claim could be pursued where it is alleged that the ineffective

assistance tainted the waiver itself, id. at 1182, and in fact held that one of the

defendant’s ineffective assistance claims could be pursued on that basis. Id. at

1190-91. However, no such claim is raised by Mr. Jefferson here. Because the

constitutional claims in Cockerham that did not relate to the validity of the

defendant’s plea did not survive the waiver, and because we see no reason for

treating differently Mr. Jefferson’s allegation that the district court violated his


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right to due process, we hold that he is not entitled to raise this claim on appeal.

2. Mr. Crane

      During his change-of-plea hearing, the following colloquy took place

between the district court and Mr. Crane:

             THE COURT: And you are agreeing to waive or give up your
      right to appeal. That is a very important right that I want to make
      sure you understand you’re giving up. You are waiving your right to
      appeal or collaterally challenge, that is, challenge by way of habeas
      corpus petition, this conviction any time in the future . . . . If I
      should make an error in a ruling of law, you’re giving up your right
      to take that error to a higher court for correction. Do you understand
      that?

             THE DEFENDANT: Yes, I do, ma’am.

III R. at 11-12 (Crane). Mr. Crane argues that because the district court

referenced only the fact that he could not appeal “this conviction,” any waiver of

his right to appeal his sentence was unknowing and thus unenforceable. Crane’s

Response at 1-2. This argument is without merit.

       We have held that “if the record as a whole establishes that the defendant’s

waiver of appellate review was knowing and voluntary, there is no requirement

that the district court itself specifically address the waiver provision in a colloquy

with the defendant.” United States v. Black, 201 F.3d 1296, 1301-02 (10th Cir.

2000). In the current action, the district court did reference the waiver, referring

to it generally as a waiver of his “right to appeal,” and it specifically inquired as

to whether he understood that he was waiving his right to have a court of appeal

                                          -8-
correct any “error in a ruling of law.” III R. at 11-12 (Crane). Although Fed. R.

Crim. P. 11(c)(6) requires that the district court “inform the defendant of, and

determine that the defendant understands . . . the terms of any provision in a plea

agreement waiving the right to appeal or to collaterally attack the sentence,” not

every variance from the mandates of Rule 11 will compel a holding that a waiver

is unenforceable. Indeed, Fed. R. Crim. P. 11(h) provides that “[a]ny variance

from the procedures required by [Rule 11] which does not affect substantial rights

shall be disregarded.” Consequently, even if we were to hold that the district

court erred by failing to specifically mention the effect of the waiver on Mr.

Crane’s ability to appeal his sentence, we believe such an error would be harmless

because the record reveals that Mr. Crane’s waiver was both knowing and

voluntary.

      The plea agreement itself stated that Mr. Crane “knowingly and voluntarily

waives his right to appeal or collaterally challenge . . . [his] sentence as imposed

by the Court and the manner in which the sentence is determined.” I R. Doc. 69

(Crane) (Plea Agreement) at 5-6. Moreover, nothing in the record even remotely

suggests that Mr. Crane was unaware of the scope and effect of the waiver. We

therefore hold that the mere fact that district court failed to specifically indicate

that Mr. Crane was waiving the right to appeal his sentence did not render his

waiver unknowing and thus unenforceable.


                                          -9-
      We also reject Mr. Crane’s argument that the language of the waiver in his

plea agreement is unconstitutionally broad and thus unenforceable. Specifically,

Mr. Crane argues that the waiver is unenforceable because it did not expressly

allow for an appeal on the public policy grounds recognized as exceptions to a

valid waiver, such as where counsel’s ineffective assistance affects the validity of

the waiver or where the district court has relied on an impermissible factor such

as race. Crane’s Response at 2-3.

      Although Mr. Crane’s plea agreement did not mention these grounds in

enumerating the circumstances under which an appeal could be brought, we fail to

see how such renders his waiver unconstitutional. Significantly, Mr. Crane does

not cite a single case supporting the assertion that a waiver’s failure to enumerate

these grounds for appeal renders it unconstitutional or otherwise unenforceable.

Moreover, the clear import of our cases acknowledging the existence of these

exceptions is that any claim falling within their scope will be entertained

notwithstanding the absence of an express provision permitting the appeal.

Should a case arise in which one of these exceptions is applicable, this court

would be free to review any covered claims. Under such circumstances we cannot

say that a waiver that fails to announce every potentially applicable public policy

exception somehow runs afoul of the Constitution.

      Finally, Mr. Crane argues that the waiver should not be enforced because


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“the issues he will raise on appeal will be of a constitutional nature.” Crane’s

Response at 3. As discussed above, however, an allegation that a district court’s

error has allegedly infringed some constitutional right not already covered by the

exceptions discussed above is insufficient to overcome a knowing and voluntary

waiver of the right to appeal. Moreover, it is of no consequence that Mr. Crane

claims that his right to effective assistance of counsel has been violated. As we

have repeatedly held, claims of ineffective assistance of counsel “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) (en banc).

Moreover, because Mr. Crane does not allege that his counsel provided

ineffective assistance in connection with the negotiation of the plea agreement or

the waiver, the public policy exception permitting review of this narrow class of

ineffective assistance claims would not apply.

      Appeals DISMISSED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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