                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 28, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff!Appellee,
                                                         No. 10-2182
    v.                                          (D.C. No. 2:10-CR-01173-JAP)
                                                          (D. N.M.)
    CARLOS RENE GONZALEZ,

                Defendant!Appellant.


                             ORDER AND JUDGMENT *


Before HARTZ, TACHA, and HOLMES, Circuit Judges.



         After entering into a plea agreement that included an appeal waiver,

Carlos Rene Gonzalez pleaded guilty to one count of reentering the United States

after being removed, in violation of 8 U.S.C. § 1326. The district court sentenced

him to 15 months of imprisonment. When he appealed, the government moved to

enforce the waiver. See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.



*
      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 This order and judgment is not binding precedent, except under the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.
2004) (en banc) (per curiam). Mr. Gonzalez’s counsel responded and also moved

to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). We have

attempted, unsuccessfully, to contact Mr. Gonzalez to allow him the opportunity

to respond to his counsel’s submission. See id. at 744. 1

      We must examine all the proceedings to determine whether it would be

frivolous to oppose the motion to enforce the appeal waiver. See id. 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.” 359 F.3d at 1325.

                               1. Scope of the Waiver

      The first step is to consider “whether the disputed appeal falls within the

scope of the waiver of appellate rights.” Id. Counsel states that Mr. Gonzalez

wishes to raise on appeal the following issues:

      1) that his trial counsel was ineffective for failing to file a written
      motion or otherwise dispute the effect of a prior conviction on his
      offense level[;] 2) that a prior conviction for a drug offense qualified
      as a “felony drug trafficking offense” for purposes of the twelve
      offense level enhancement of Guideline § 2L1.2 . . .; 3) that he was
      coerced to enter[] the Agreement under duress imposed by the

1
      When this case first came up for decision, the Federal Bureau of Prisons’s
Inmate Locator Internet site indicated that Mr. Gonzalez was in transit.
Eventually we ordered counsel to provide an address for Mr. Gonzalez. The
government promptly responded, but the court’s letters sent to the submitted
address were twice returned as undeliverable. As of the date of this decision, the
Inmate Locator again identifies Mr. Gonzalez as being in transit.

                                         -2-
      statutory maximum of twenty years imprisonment for the applicable
      offense; and 4) that the trial court impermissibly considered arrests
      for which there was no conviction in determining the sentence.

Aplt. Counseled Resp. at 2. Mr. Gonzalez also filed a pro se notice of appeal

alleging that his counsel was ineffective because he “failed to seek a ‘good

defense’ to bring before the Sentencing Court as [h]e had promised at time [h]e

persuaded [m]e to accept the Plea Agreement” and he “refuse[d] to object to the

contents of the Presentence Probation Report.” Record on Appeal, Vol. I at 21.

Both the counseled response and the pro se notice of appeal indicate that

Mr. Gonzalez wishes to challenge only his sentence, not his conviction.

      Mr. Gonzalez’s appellate waiver provides:

      The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C. § 3742
      afford a Defendant the right to appeal a conviction and the sentence
      imposed. Acknowledging that, the Defendant knowingly waives the
      right to appeal the Defendant’s conviction(s) and any sentence
      within the advisory guideline range as determined by the Court.
      The Defendant specifically agrees not to appeal the Court’s
      resolution of any contested sentencing factor in determining the
      advisory sentencing guideline range. In other words, the Defendant
      waives the right to appeal both the Defendant’s conviction(s) and the
      right to appeal any sentence imposed in conformity with this plea
      agreement.

Mot. to Enforce, Plea Agt. at 6 (emphasis in original). This waiver is extremely

broad, covering almost every challenge to the conviction or sentence. Thus, the

second, third, and fourth issues for appeal clearly fall within the scope of the

waiver. Particularly, given the plain language of the waiver that “[t]he Defendant

specifically agrees not to appeal the Court’s resolution of any contested

                                         -3-
sentencing factor in determining the advisory sentencing guideline range,” id., it

is frivolous for counsel to suggest that the waiver applies to the “substantive

reasonableness of the sentence,” but not the “procedural reasonableness,” Aplt.

Counseled Resp. at 12.

      The remaining issues concern counsel’s effectiveness. To the extent that an

ineffective-assistance claim addresses something other than counsel’s

performance with regard to the plea or waiver, it generally falls within the scope

of a waiver. See United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir.

2001). But “ineffective assistance of counsel claims challenging the validity of

the plea or the waiver” are not waivable. Id. Moreover, Mr. Gonzalez’s waiver

specifically reserves his right to bring a 28 U.S.C. § 2255 motion “on the issue of

ineffective assistance of counsel.” Mot. to Enforce, Plea Agt. at 6.

      In light of Cockerham and the reservation of rights in the waiver, it appears

that some or all of the ineffective-assistance arguments have not been waived.

Questions of ineffective assistance, however, are only rarely heard on direct

appeal. Instead, they properly are raised in collateral proceedings under

28 U.S.C. § 2255. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.

1995) (en banc) (“Ineffective assistance of counsel claims 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.”). “This rule

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

                                         -4-
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). Because no circumstances

in this case justify departing from the general practice of deferring

ineffective-assistance claims to § 2255 proceedings, any issues that are not

waived cannot properly be argued in this appeal. Under these circumstances, we

shall not deny the motion to enforce on the ground that some or all of the

ineffective-assistance issues may fall outside the scope of the waiver.

                              2. Knowing and Voluntary

      The second step is to determine “whether the defendant knowingly and

voluntarily waived his appellate rights.” Hahn, 359 F.3d at 1325. In evaluating

whether a waiver was knowing and voluntary, “we examine whether the language

of the plea agreement states that the defendant entered the agreement knowingly

and voluntarily” and “we look for an adequate Federal Rule of Criminal

Procedure 11 colloquy.” Id.

      The plea agreement clearly sets forth the waiver, and it indicates that

Mr. Gonzalez entered the agreement knowingly and voluntarily. And just before

the signature block, Mr. Gonzalez again acknowledged that he voluntarily signed

the agreement.

      Before the plea colloquy, the court and the parties reviewed a competency

report and concluded that Mr. Gonzalez was competent to stand trial. At the

colloquy, the court confirmed that the plea agreement had been read to him in

                                         -5-
Spanish, he went over it with his attorney, and he felt he understood it. The court

also confirmed that he was pleading guilty of his own free will. But the court did

not discuss the appeal waiver, in violation of Fed. R. Crim. P. 11(b)(1)(N).

      The court’s failure to address the waiver, however, does not necessarily

mean that the waiver was not knowing and voluntary and unenforceable. Because

Mr. Gonzalez did not object to the omission before the district court, we review

only for plain error. See United States v. Edgar, 348 F.3d 867, 870-72 (10th Cir.

2003) (applying plain-error review to the defendant’s argument that the district

court’s failure to discuss the appellate waiver during the plea colloquy rendered

the waiver unknowing and involuntary). The first two prongs of plain-error

review are satisfied, as there is an error that is plain. See id. at 871, 872.

      To satisfy the third prong of plain-error review, however, Mr. Gonzalez

must show that his substantial rights were affected by the error—that is, that “he

would not have pleaded guilty if the district court had complied with Rule

11(b)(1)(N).” Id. at 872. There is nothing in the record to satisfy this test. As

discussed above, the evidence shows that the waiver was clearly set forth in the

plea agreement, that Mr. Gonzalez understood the terms of the agreement, and

that he entered the agreement and the plea voluntarily. See id. (noting similar

facts as relevant in determining whether the defendant’s substantial rights were

affected by the court's failure to comply with Rule 11(b)(1)(N)). Moreover, he

mentioned the waiver at the end of his first sentencing hearing, which confirms

                                           -6-
that he was aware of it. See Mot. to Enforce, June 17, 2010 Sent. Tr. at 23. And

even in this appeal, he seeks to challenge only his sentence, not the guilty plea

itself. Because Mr. Gonzalez’s substantial rights were not affected by the

deficient Rule 11 colloquy, the plain-error standard has not been met. We

conclude that the waiver was entered into knowingly and voluntarily. 2

                             3. Miscarriage of Justice

      The final step in the analysis is to determine “whether enforcing the waiver

would result in a miscarriage of justice.” Hahn, 359 F.3d at 1325. A miscarriage

of justice occurs where (1) “the district court 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.” Id. at 1327

(quotations omitted).

      The only category that appears to be relevant in this case is ineffective

assistance of counsel. As discussed above, however, a claim of ineffective

assistance generally must be addressed in a collateral § 2255 proceeding, even

where a defendant invokes ineffective assistance in an attempt to negate an


2
       One of the issues counsel identifies is whether Mr. Gonzalez was coerced
into pleading guilty by the prospect of twenty years of incarceration. This
argument does not convince us that the appeal waiver was not knowing and
voluntary. Pleading guilty in the face of severe punishment does not mean that a
plea is coerced or involuntary. See Osborn v. Shillinger, 997 F.2d 1324, 1328
(10th Cir. 1993).

                                         -7-
appellate waiver. See Porter, 405 F.3d at 1144. Of course, the waiver will not

preclude Mr. Gonzalez from bringing a § 2255 motion alleging ineffective

assistance of counsel. See Cockerham, 237 F.3d at 1187; Mot. to Enforce, Plea

Agt. at 6 (reserving the right to bring a § 2255 motion “on the issue of ineffective

assistance of counsel”).

      The motion to withdraw as counsel is GRANTED. The motion to enforce

the plea agreement is GRANTED and this appeal is DISMISSED



                                       ENTERED FOR THE COURT
                                       PER CURIAM




                                         -8-
