                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 September 9, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                              FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 10-5084
                                              (D.C. No. 4:08-CR-00051-CVE-1)
    MANUAL BONILLA,                                      (N.D. Okla.)
    a/k/a Carlos Contreras,

                Defendant-Appellant.


                              ORDER AND JUDGMENT *


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



         Manual Bonilla pleaded guilty to two counts from a thirteen-count third

superseding indictment: one count of participating in a continuing criminal

enterprise and one count of participating in a conspiracy to possess and distribute

cocaine, marijuana and methamphetamine. He also pleaded guilty to a charge of

money laundering from a separate information. As part of his plea agreement, he


*
      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 This order and judgment is not binding precedent, except under the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.
knowingly and voluntarily waived his right to appeal his conviction and sentence.

Mr. Bonilla later filed a pro se motion to withdraw his guilty plea, which the

district court denied. The district court entered judgment and sentenced

Mr. Bonilla to 293 months’ imprisonment.

      In spite of the waiver in his plea agreement, Mr. Bonilla has now filed an

appeal challenging his conviction and sentence. The government has filed a

motion to enforce the appellate waiver in Mr. Bonilla’s plea agreement pursuant

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

Under Hahn, we consider: “(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.

      In his response, Mr. Bonilla does not argue that his appeal is outside of the

scope of his waiver or that his waiver was not knowing and voluntary. Instead, he

argues that his counsel was constitutionally ineffective in advising him during the

negotiation of his plea agreement. This argument falls under the third prong of

the Hahn analysis, where enforcing the waiver would result in a miscarriage of

justice. See id. In Hahn, we explained that in considering the third prong we

would we look to whether the defendant had met one of the four exceptions,




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including, “where ineffective assistance of counsel in connection with the

negotiation of the waiver renders the waiver invalid.” Id. at 1327 (quotation

omitted). But we also explained that “[g]enerally, we only consider ineffective

assistance of counsel claims on collateral review,” and “[o]ur holding today does

not disturb this longstanding rule.” Id. at 1327 n.13.

      Mr. Bonilla acknowledges that under our precedent the preferred approach

in these circumstances is to dismiss the direct appeal without prejudice to the

defendant filing a 28 U.S.C. § 2255 action to assert his ineffective assistance of

counsel claim. But Mr. Bonilla asks us to decline to follow our court’s preferred

approach and to consider his ineffective assistance of counsel claim on direct

appeal based on his contention that the record has been adequately developed for

this court to consider the claim. We have explained that “[w]ith rare exception, a

defendant must raise ineffective assistance of counsel claims in a collateral

proceeding, not on direct appeal.” United States v. Edgar, 348 F.3d 867, 869

(10th Cir. 2003). We have followed this practice even when the record is

sufficiently developed. See id. As we have explained,

      An opinion by the district court is a valuable aid to appellate review
      for many reasons, not the least of which is that in most cases the
      district court is familiar with the proceedings and has observed
      counsel’s performance, in context, firsthand. Thus, even if the
      record appears to need no further development, the claim should still
      be presented first to the district court in collateral proceedings . . . so
      the reviewing court can have the benefit of the district court’s views.




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United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). We do not see

any reason in this case to depart from our general practice of not considering

claims of ineffective assistance of counsel on direct appeal.

      Accordingly, we GRANT the government’s motion to enforce the appeal

waiver and DISMISS the appeal, without prejudice to Mr. Bonilla asserting an

ineffective assistance of counsel claim in a § 2255 motion.


                                                    ENTERED FOR THE COURT
                                                    PER CURIAM




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