                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                     No. 09-3562
                                   _______________

                           UNITED STATES OF AMERICA

                                           v.

                               RAFAEL DOMINGUEZ,
                                                 Appellant
                                 _______________

                   On Appeal from the United States District Court
                        For the Middle District of Pennsylvania
                    (D.C. Criminal Action No. 1-07-cr-00064-004)
                   District Judge: Honorable Christopher C. Conner
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 18, 2012
                                 _______________

             Before: SCIRICA, AMBRO and NYGAARD, Circuit Judges

                             (Opinion filed: April 19, 2012)
                                  _______________

                                      OPINION
                                   _______________

AMBRO, Circuit Judge

      Rafael Dominguez pled guilty to criminal forfeiture and conspiracy to distribute

and possess cocaine hydrochloride in March 2009. The District Court for the Middle

District of Pennsylvania sentenced Dominguez five months later, and he filed a timely
notice of appeal. Subsequently, Dominguez’s attorney moved to withdraw as counsel

under Anders v. California, 386 U.S. 738 (1967), asserting that all potential grounds for

appeal are frivolous. Dominguez has filed a pro se brief in support of his appeal. We

grant his counsel’s Anders motion, affirm the judgment and sentence of the District

Court, and dismiss without prejudice the ineffective-assistance-of-counsel claim that

Dominguez asserts for the first time on appeal.

                                             I.

         A federal grand jury charged Dominguez with (1) conspiracy to distribute and

possess with intent to distribute five kilograms or more of cocaine hydrochloride in

violation of 21 U.S.C. § 846; (2) distribution and possession with intent to distribute five

kilograms or more of cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1); (3)

distribution and possession with intent to distribute 50 grams or more of cocaine base in

violation of 21 U.S.C. § 841(a)(1); and (4) criminal forfeiture in violation of 21 U.S.C.

§ 853.

         Over a year later, the Government filed a two-count superseding felony

information that charged only the first and fourth offenses on the indictment. At the same

time, Dominguez pled guilty to those two charges in a written plea agreement. That

agreement included a waiver of his rights to direct and collateral appeal.

         The District Court then held a plea hearing. There, it addressed Dominguez

through a Spanish-language interpreter. Dominguez affirmed that he could understand

the Court’s questions through the interpreter. In the ensuing plea colloquy, the Court

advised Dominguez that he had rights to direct and collateral appeals and that his plea

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agreement waived those rights. Dominguez indicated that he understood and agreed.

The Court further ensured that Dominguez had read and understood the waiver provision

in his plea agreement.

       After the Court accepted Dominguez’s plea but before the sentencing hearing,

Dominguez moved to withdraw his plea. He asserted that he had not properly understood

the interpreter at his plea hearing and that he was not in possession of drugs when he was

arrested. The Court denied his motion and sentenced him to 121 months of

imprisonment, a $1,000 fine, a $100 special assessment, and three years of supervised

release.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

                                             II.

                                             A.

       Our rules provide that “[w]here, upon review of the district court record, counsel

is persuaded that the appeal presents no issue of even arguable merit, counsel may file a

motion to withdraw and supporting brief pursuant to Anders.” 3d Cir. L.A.R. 109.2(a).

If we concur with trial counsel’s assessment, we “will grant [the] Anders motion, and

dispose of the appeal without appointing new counsel.” Id. Accordingly, our “inquiry is

. . . twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2)

whether an independent review of the record presents any nonfrivolous issues.” United

States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).



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       In his Anders brief, Dominguez’s counsel identifies three potential grounds for

appeal: (1) that Dominguez’s waiver of appeal was not knowing and voluntary; (2) that

the waiver of appeal would result in a miscarriage of justice; and (3) that the District

Court abused its discretion in denying Dominguez’s motion to withdraw his guilty plea.

Our review of the record confirms counsel’s assessment that there are no nonfrivolous

issues for direct appeal.

       First, “we will not exercise . . . jurisdiction to review the merits of [Dominguez’s]

appeal if we conclude that []he knowingly and voluntarily waived [his] right to appeal.”

United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). Save for Dominguez’s pro

se brief, which we address below in section II.B, the record offers no indication that

Dominguez’s waiver was not knowing and voluntary. The plea agreement states that he

had a right to appeal. It then adds: “Acknowledging all of this, the defendant knowingly

waives the right to appeal any conviction and sentence . . . .” The District Court asked

Dominguez whether he had “carefully reviewed this paragraph with [his] attorney,” and

Dominguez responded that he had. The Court separately advised Dominguez of his

appeal rights and asked: “Do you understand that this plea agreement severely limits your

right to appeal and prevents you from using later proceedings like a collateral attack and

habeas corpus to challenge your conviction, sentence, or any other matter?” Dominguez

again affirmed that understanding. With this colloquy, the Court ensured Dominguez’s

understanding of “the terms of any plea-agreement provision waiving the right to appeal

or to collaterally attack the sentence.” Fed. R. Crim. P. 11(b)(1)(N).



                                              4
       Second, we may nonetheless exercise appellate jurisdiction if enforcing the waiver

of appeal “would work a miscarriage of justice.” Gwinnett, 483 F.3d at 203. In making

that determination, we consider, among other factors, “the clarity of the error, its gravity,

its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory

maximum), the impact of the error on the defendant, the impact of correcting the error on

the government, and the extent to which the defendant acquiesced in the result.” United

States v. Mabry, 536 F.3d 231, 242-43 (quotation marks and citation omitted). Because

the record does not reveal a specific error, we agree that enforcement of Dominguez’s

waiver would not work a miscarriage of justice.

       Third, even if we act on our jurisdiction, we agree that the District Court did not

abuse its discretion in denying Dominguez’s motion to withdraw his guilty plea. “A

district court must consider three factors when evaluating a motion to withdraw a guilty

plea: (1) whether the defendant asserts his innocence; (2) the strength of the defendant’s

reasons for withdrawing the plea; and (3) whether the government would be prejudiced

by the withdrawal.” United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). The

District Court expressly addressed these factors at the sentencing hearing. Dominguez

did not assert his innocence, and his active participation in the plea colloquy undermines

his claim that he did not understand the interpreter.

       In sum, the record indicates that Dominguez made a knowing and voluntary

waiver of his right to appeal, that enforcing that waiver would not work a miscarriage of

justice, and that even if we accepted jurisdiction, the District Court did not abuse its

discretion in denying Dominguez’s motion to withdraw his plea. We therefore agree with

                                              5
Dominguez’s counsel that none of the conditions that could overcome an appellate

waiver exists here and that there is no nonfrivolous basis on which he may appeal at this

time.

                                              B.

        Dominguez attempts to supplement the record in his pro se brief. Specifically, he

alleges that his plea agreement, including its waiver provision, was not knowing and

voluntary due to certain advice he received from counsel. The affidavit that Dominguez

has attached to his brief is the only evidence before us concerning these allegations.

        “It has long been the practice of this court to defer the issue of ineffectiveness of

trial counsel to a collateral attack.” United States v. Thornton, 327 F.3d 268, 271 (3d Cir.

2003); see also United States v. McLaughlin, 386 F.3d 547, 555-56 (3d Cir. 2004). 1

Those claims typically involve facts that are not developed in the record, and our Court is

ill suited to developing the facts. “When an ineffective-assistance claim is brought on

direct appeal, appellate counsel and the court must proceed on a trial record not

developed precisely for the object of litigating or preserving the claim and thus often

incomplete or inadequate for this purpose.” Massaro v. United States, 538 U.S. 500,

504-05 (2003). Those problems are exacerbated where, as here, the same counsel was

appointed to represent the defendant both at trial and on direct appeal.




1
  We have recognized an exception to this practice where “the record is sufficient to
allow determination of the issue.” Thornton, 327 F.3d at 271. That exception does not
apply here.

                                               6
       The appropriate way for Dominguez to challenge the effectiveness of his counsel,

and thus the voluntariness of his appeal waiver, is an application for a writ of habeas

corpus under 28 U.S.C. § 2255. We express no opinion on the merits of his

ineffectiveness claim at this time. We do note, however, that our decision not to decide

this issue may not be construed as a bar to an ineffectiveness claim in a collateral

challenge. See Massaro, 538 U.S. at 509.

                                      *   *   *   *   *

       Counsel adequately fulfilled the requirements of Anders. We therefore grant

counsel’s motion to withdraw, affirm the judgment and sentence of the District Court,

and dismiss without prejudice the ineffective-assistance-of-counsel claim.




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