                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                November 13, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 09-7035
                                               (D.C. No. 6:08-CR-00025-FHS-2)
    TERESA LOU MARTIN, a/k/a Coo,                        (E.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, TYMKOVICH, and GORSUCH, Circuit Judges.



         Teresa Lou Martin entered a guilty plea to one count of conspiracy to

possess with intent to distribute more than 500 grams of methamphetamine and

one count of drug forfeiture. Her plea agreement included a waiver of her right to

appeal her conviction and sentence, reserving the right to appeal only if the

sentence she received exceeded the statutory maximum. Despite her appeal



*
      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 This order and judgment is not binding precedent, except under the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.
waiver, Ms. Martin has now filed an appeal seeking to challenge her sentence.

The government has moved to enforce the appeal waiver in Ms. Martin’s plea

agreement pursuant to our decision in United States v. Hahn, 359 F.3d 1315

(10th Cir. 2004) (en banc) (per curiam). We grant the motion and dismiss the

appeal.

      In her plea agreement, Ms. Martin agreed that she knowingly and

voluntarily agreed to waive her right to appeal her conviction and sentence unless

the sentence imposed exceeded the statutory maximum. Mot. to Enforce, Attach.

at 11. At the plea hearing, the district court reviewed the plea agreement with

Ms. Martin, including her agreement to waive her right to appeal her conviction

and sentence. At sentencing, the district court determined the applicable

sentencing range for the drug conspiracy count to be 210 to 262 months. The

court sentenced Ms. Martin to 210 months’ imprisonment, followed by thirty

months of supervised release. This sentence was at the low end of the advisory

guideline range and well below the statutory maximum sentence of life

imprisonment for count one. On the drug forfeiture count, it ordered forfeiture of

certain real property and $4,000,000.

      Ms. Martin’s counsel filed a response to the government’s motion to

enforce the appeal waiver, stating his belief that there are no meritorious grounds

upon which Ms. Martin can urge denial of the government’s motion to enforce the

appeal waiver, and he requested permission to withdraw. See Anders v.

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California, 386 U.S. 738, 744 (1967) (authorizing counsel to request permission

to withdraw where counsel conscientiously examines a case and determines that

an appeal would be wholly frivolous). This court then gave Ms. Martin an

opportunity to file a pro se response to the government’s Hahn motion.

      In her response, Ms. Martin states that she seeks to appeal her sentence as

too long because of her claimed lack of criminal history; lack of evidence that she

was a leader/organizer; the court’s use of statements against her from a felon and

a drug offender; and insufficient evidence that she could have organized or led the

drug conspiracy. She claims that the district court did not explain to her at the

plea colloquy that her sentence could be increased above the range for the base

offense level; thus, her plea and its appeal waiver was not knowing and voluntary.

She also argues that her counsel failed to explain this to her; thus, she received

ineffective assistance of counsel in connection with the plea waiver.

      Defendants are bound to the terms of knowingly and voluntarily accepted

plea agreements. United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir.

1998). This includes any waiver of the right to appeal. Id.; Hahn, 359 F.3d at

1325. This court will enforce an appeal waiver as long as: (1) “the disputed

appeal falls within the scope of the waiver of appellate rights”; (2) “the defendant

knowingly and voluntarily waived his appellate rights”; and (3) “enforcing the

waiver would [not] result in a miscarriage of justice.” Hahn, 359 F.3d at 1325.




                                          -3-
      Under her plea agreement, Ms. Martin waived the right to appeal any

sentence imposed by the district court unless it exceeded the statutory maximum.

The sentence imposed was well below the statutory maximum of life

imprisonment, and Ms. Martin’s proposed appeal undisputably seeks to challenge

the sentence imposed by the district court. Thus, Ms. Martin’s appeal clearly

falls within the scope of her appeal waiver. See United States v. Ibarra-Coronel,

517 F.3d 1218, 1221 (10th Cir. 2008).

      To determine whether an appeal waiver was knowingly and intelligently

made, we consider both the language of the plea agreement and the adequacy of

the Fed. R .Crim. P. 11 plea colloquy. Hahn, 359 F.3d at 1325. The defendant

bears the burden of proving that the waiver was not knowing and voluntary. Id. at

1329. Here, Ms. Martin’s plea agreement unequivocally stated that she

“knowingly and voluntarily” agreed to waive her right to appeal any sentence

imposed unless it exceeded the statutory maximum. Further, Ms. Martin stated in

her plea agreement that she understood the sentencing court could consider “all

relevant information with respect to [her] background, character and conduct,

including the conduct that is the subject of the charges which the United States

has agreed to dismiss, and the nature and extent of [her] cooperation, if any.”

Mot. to Enforce, Attach. at 7. At the plea colloquy, the district court asked

Ms. Martin if she understood she was waiving her right to appeal, and asked her if

she understood that the sentence she received would be a matter in the sole

                                         -4-
control of the court, and if she was prepared to accept any sentence permitted by

law that the court imposed. Under oath, Ms. Martin stated that she did understand

all of this. We have rejected the argument “that a defendant must know with

specificity the result [she] forfeits before [her] waiver is valid.” Hahn, 359 F.3d

at 1326-27. The plea agreement and plea colloquy clearly demonstrate that

Ms. Martin knowingly and voluntarily waived her right to appeal her sentence;

thus, the second Hahn requirement was satisfied.

      Ms. Martin contends that she received ineffective assistance of counsel in

connection with the negotiation of her waiver. If true, we have held that it would

be a miscarriage of justice to enforce the appeal waiver. Id. at 1327. We decline

to reach the merits of this challenge, however, because such a claim must be

raised by motion under 28 U.S.C. § 2255 rather than by direct appeal, and “[t]his

rule applies even where a defendant seeks to invalidate an appellate waiver based

on ineffective assistance of counsel.” United States v. Porter, 405 F.3d 1136,

1144 (10th Cir. 2005) (citing Hahn, 359 F.3d at 1327 n.13). Ms. Martin’s plea

agreement also waived her right to collaterally attack her conviction or sentence,

but that waiver does not bar an ineffective-assistance claim relating to

negotiations leading to the waiver itself. See United States v. Cockerham,

237 F.3d 1179, 1184 (10th Cir. 2001); see also Mot. to Enforce, Attach. at 11

(permitting her to file § 2255 ineffective-assistance-of-counsel challenge to

validity of guilty plea or waiver).

                                         -5-
      Because Ms. Martin has not established any of the applicable exceptions to

the enforcement of her appeal waiver, we conclude that the government’s motion

to enforce should be granted. Accordingly, we GRANT the motion and DISMISS

the appeal.



                                     ENTERED FOR THE COURT
                                     PER CURIAM




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