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

                            FOR THE TENTH CIRCUIT                        January 30, 2019
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                        No. 18-1339
                                                 (D.C. No. 1:17-CR-00417-RBJ-1)
 ANGELA NICOLE MONACO, a/k/a                                (D. Colo.)
 Rubbo Angela Beckcom, a/k/a Angela
 Rubbo, a/k/a Angela Beckcom,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, LUCERO, and MORITZ, Circuit Judges.
                   _________________________________

      Angela Nicole Monaco pleaded guilty to one count of conspiring to commit

mail and wire fraud and one count of money laundering. She was sentenced to serve

74 months in prison, which was within the advisory guideline range of 70 to 87

months. Although her plea agreement contained a waiver of her appellate rights, she

filed a notice of appeal. Her docketing statement indicates she wants to challenge her

sentence on appeal. The government has moved to enforce the appeal waiver in


      *
         This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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.
Ms. Monaco’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 [her] appellate rights; and (3) whether enforcing the waiver would

result in a miscarriage of justice.” Id. at 1325. In her response to the motion to

enforce, Ms. Monaco disputes that her appellate waiver was knowing and voluntary.

She suggests her trial counsel may have provided ineffective assistance by advising

her to reject an earlier, more-favorable plea offer.

      Ms. Monaco’s plea agreement contains a waiver of her right to appeal any

matter in connection with her prosecution, conviction or sentence. It also contains a

waiver of her right to challenge her prosecution, conviction, or sentence in any

collateral attack, including a motion brought under 28 U.S.C. § 2255. But the plea

agreement expressly reserves the right for Ms. Monaco to raise a claim in a collateral

proceeding for ineffective assistance of counsel or prosecutorial misconduct.

Ms. Monaco acknowledges that “‘a defendant must generally raise claims of

ineffective assistance of counsel in a collateral proceeding, not on direct review’—

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

assistance of counsel.’” Resp. at 1-2 (quoting United States v. Porter, 405 F.3d

1136, 1144 (10th Cir. 2005)).

      Given these circumstances, Ms. Monaco:



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       does not object to a finding that she cannot show on the present record that
       her plea or her appeal waiver was not knowing or voluntary (or that her
       appeal is outside the scope of the waiver, or necessary to avoid a
       miscarriage of justice under [Hahn]), and she does not object to a dismissal
       of her direct appeal on the government’s motion without prejudice to her
       filing a 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel
       or prosecutorial misconduct.
Resp. at 2.

       We agree with the government that, on the present record, Ms. Monaco’s

waiver was knowing and voluntary, her appeal is within the scope of the appeal

waiver, and enforcing the waiver will not result in a miscarriage of justice.

Accordingly, we grant the government’s motion to enforce the appeal waiver and

dismiss the appeal. This dismissal is without prejudice to Ms. Monaco’s right to

bring a claim in a collateral proceeding for ineffective assistance of counsel or

prosecutorial misconduct as permitted in her plea agreement.


                                             Entered for the Court
                                             Per Curiam




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