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

                            FOR THE TENTH CIRCUIT                         November 14, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-3170
                                                  (D.C. No. 5:17-CR-40041-DDC-1)
 RYAN J. SINGLETON,                                           (D. Kan.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before TYMKOVICH, Chief Judge, BACHARACH and MORITZ, Circuit Judges.
                 _________________________________

      Following his acceptance of a plea agreement that included a waiver of his

right to appeal, Ryan J. Singleton pleaded guilty to possession of child pornography,

in violation of 18 U.S.C. § 2252(a)(4)(B). Despite his waiver, he filed an appeal.

The government has moved to enforce Singleton’s appeal waiver. See United States

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

      In evaluating a motion to enforce a waiver, we consider: “(1) whether the

disputed appeal falls within the scope of the waiver of appellate rights; (2) whether




      *
         This order and judgment is not binding precedent, except under the doctrines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.
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.

       Singleton’s plea agreement includes the following waiver of his appellate and

collateral-attack rights:

               The defendant knowingly and voluntarily waives any right to appeal
       or collaterally attack any matter in connection with this prosecution, his
       conviction, or the components of the sentence to be imposed herein,
       including the length and conditions of supervised release, as well as any
       sentence imposed upon a revocation of supervised release. The defendant
       is aware that 18 U.S.C. § 3742 affords him the right to appeal the
       conviction and sentence imposed. The defendant also waives any right to
       challenge his sentence, or the manner in which it was determined, or
       otherwise attempt to modify or change his sentence, in any collateral attack,
       including, but not limited to, a motion brought under 28 U.S.C. § 2255
       (except as limited by United States v. Cockerham, 237 F.3d 1179, 1187
       (10th Cir. 2001)), or a motion brought under Federal Rule of Civil
       Procedure 60(b). In other words, the defendant waives the right to appeal
       the sentence imposed in this case, except to the extent, if any, the Court
       departs or varies upwards from the sentencing Guideline range that the
       Court determines to be applicable. However, if the United States exercises
       its right to appeal the sentence imposed, as authorized by 18 U.S.C.
       § 3742(b), the defendant is released from this waiver and may appeal the
       sentence received, as authorized by 18 U.S.C. § 3742(a). Notwithstanding
       the forgoing waivers, the parties understand that the defendant in no way
       waives any subsequent claims with regards to ineffective assistance of
       counsel or prosecutorial misconduct.
Mot. to Enforce, Attach. C (Plea Agmt.) at 7-8.

       In responding to the government’s motion, Singleton indicates that he wishes

to raise two issues on appeal: (1) that the district court misinterpreted some facts in

determining his sentence, and (2) that his counsel in district court was ineffective.

But Singleton concedes that his first appeal issue falls within the scope of his appeal




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waiver because his 120-month sentence fell within the applicable sentencing range

calculated by the district court. See id., Attach. B (Sent. Tr.) at 33-34.

      As to his second issue, Singleton notes, correctly, that he preserved in his plea

agreement his right to raise claims of ineffective assistance of counsel. He

acknowledges, however, that “a defendant generally must raise claims of ineffective

assistance of counsel in a collateral proceeding, not on direct review” and that “[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). In conclusion, Singleton states that he

      objects to any affirmative finding that his plea or his waiver was knowing
      and voluntary. However, he does not object to a finding that he cannot
      show on the present record that his plea or his waiver was not knowing or
      voluntary, and he does not object to a dismissal of his direct appeal on the
      government’s motion without prejudice to him filing a 28 U.S.C. § 2255
      motion alleging ineffective assistance of counsel.
Resp. at 3.

      Our independent review confirms that Singleton’s proposed issues for appeal

fall within the scope of his waiver or raise a claim of ineffective assistance of counsel

that he may not pursue on direct appeal, see United States v. Edgar, 348 F.3d 867,

869 (10th Cir. 2003) (stating rule, with “rare exception” not applicable here, that

ineffective-assistance claims must be brought in a collateral proceeding). The plea

agreement clearly sets forth the appeal waiver and states that it was knowing and

voluntary, and the district court discussed the waiver and confirmed Singleton’s

understanding of it during his change-of-plea hearing. Moreover, there is no


                                            3
evidence in the present record contradicting Singleton’s knowing and voluntary

acceptance of the waiver. Finally, there is also no indication in the present record

that enforcing the waiver would result in a miscarriage of justice as defined in Hahn,

359 F.3d at 1327.

      The motion to enforce is granted and this appeal is dismissed.


                                            Entered for the Court
                                            Per Curiam




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