         Case: 08-4135   Document: 01017592885     Date Filed: 01/27/2009    Page: 1
                                                                            FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                         UNITED STATES COURT OF APPEALS January 27, 2009

                              FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                      Clerk of Court


    UNITED STATES OF AMERICA,

                  Plaintiff!Appellee,
    v.
                                                           No. 08-4135
    GUILLERMO J. ARAIZA,                         (D.C. No. 2:07-CR-00707-TS-1)
                                                            (D. Utah)
                  Defendant!Appellant.


                              ORDER AND JUDGMENT *


Before TACHA, MURPHY, and McCONNELL, Circuit Judges.



           Defendant Guillermo J. Araiza pleaded guilty to possession of

methamphetamine with intent to distribute and possession of a firearm in

furtherance of a drug trafficking crime. Pursuant to the plea agreement, he

waived his right to appeal his conviction or his sentence, provided his sentence

was within the statutory maximum authorized by law and within the advisory

sentencing guideline determined by the district court to apply. Defendant’s


*
      This panel has determined unanimously 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 This order and judgment is not binding precedent, except under the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.
   Case: 08-4135      Document: 01017592885      Date Filed: 01/27/2009    Page: 2



sentence was below the statutory maximum and within the advisory guideline

range. Nevertheless, defendant filed a notice of appeal.

        The government filed a motion to enforce the plea agreement pursuant to

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

response, defendant concedes through counsel that the issue he seeks to present

on appeal is within the scope of his appeal waiver and that he knowingly and

voluntarily waived his appellate rights. He further concedes that, subject to his

right to assert an issue of ineffective assistance of counsel in a subsequent

28 U.S.C. § 2255 motion, enforcing the waiver would not result in a miscarriage

of justice. Thus, defendant concedes that there are no valid grounds to object to

the government’s motion to enforce the appeal waiver. See Hahn, 359 F.3d at

1325.

        Defendant does ask that he be allowed to pursue a § 2255 claim that his

counsel was constitutionally ineffective in connection with the negotiation of the

appeal waiver. Defendant correctly notes that a claim of ineffective assistance of

counsel in connection with the negotiation of the plea agreement must ordinarily

be raised in a collateral § 2255 proceeding, not on direct appeal. See United

States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005); see also United States v.

Cockerham, 237 F.3d 1179, 1184 (10th Cir. 2001) (“[A] claim of ineffective

assistance of counsel in connection with the negotiation of a plea agreement

cannot be barred by the agreement itself.”) (alteration and quotation omitted).

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   Case: 08-4135      Document: 01017592885      Date Filed: 01/27/2009   Page: 3



      We have reviewed the record and defendant’s response, and we agree that

the appeal falls within the scope of the appeal waiver, that defendant knowingly

and voluntarily waived his appellate rights, and that enforcing the waiver would

not result in a miscarriage of justice.

      Accordingly, we GRANT the motion to enforce the appeal waiver, without

prejudice to defendant’s right to file a § 2255 motion asserting ineffective

assistance of counsel in connection with the negotiation of his appeal waiver, and

we DISMISS the appeal.



                                          ENTERED FOR THE COURT
                                          PER CURIAM




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