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

                            FOR THE TENTH CIRCUIT                        September 25, 2018
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 18-3116
                                                  (D.C. No. 2:16-CR-20092-JAR-1)
 MARCELINO ALMARAZ,                                           (D. Kan.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

      Marcelino Almaraz pleaded guilty to one count of aiding and abetting in the

preparation of false and fraudulent income tax returns and one count of filing a false

or fraudulent tax return. He was sentenced to serve 21 months in prison and ordered

to pay $397,552 in restitution. Although his plea agreement contained a waiver of

his appellate rights, he filed a notice of appeal. The government has moved to

enforce the appeal waiver in Mr. Almaraz’s plea agreement pursuant to United States

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


      *
         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This order and judgment is not binding precedent, except under the doctrines of law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.
      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. Mr. Almaraz indicated in his

docketing statement that he wants to challenge the restitution portion of his sentence

on appeal.

      We first note that Mr. Almaraz was represented by attorney Carl Cornwell in

the proceedings in district court and Mr. Cornwell entered an appearance on

Mr. Almaraz’s behalf on appeal. But Mr. Almaraz filed a motion to represent

himself pro se on appeal because he wanted to argue that Mr. Cornwell provided

ineffective assistance of counsel in his case before the district court. We

subsequently: (1) granted Mr. Cornwell’s motion to withdraw as counsel for

Mr. Almaraz; (2) denied Mr. Almaraz’s motion to represent himself pro se; and

(3) appointed the Federal Public Defender for the District of Kansas to represent

Mr. Almaraz on appeal.

      In his response to the motion to enforce, Mr. Almaraz disputes that his

appellate waiver was knowing and voluntary. He wants to challenge the waiver (and

his guilty plea) based on Mr. Cornwell’s alleged ineffective assistance of counsel.

But “he understands after consultation with current counsel 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



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waiver based on ineffective assistance of counsel.’” Resp. at 1-2 (quoting United

States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005)).

      In his plea agreement, Mr. Almaraz reserved the right to raise a claim in a

collateral proceeding for ineffective assistance of counsel in the negotiation of his

appeal waiver. He also reserved the right—notwithstanding the other waivers in his

plea agreement—to raise “any subsequent claims with regards to ineffective

assistance of counsel or prosecutorial misconduct.” Mot. to Enf., Attach. C at 11.

      Given these circumstances, Mr. Almaraz “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 2. Considering the Hahn

factors, Mr. Almaraz does not contest that his appeal falls within the scope of his

appeal waiver so we need not address that issue. See Porter, 405 F.3d at 1143. On

the present record, we find that his waiver was knowing and voluntary. Although

ineffective assistance of counsel in the negotiation of the plea agreement is one of the

four circumstances that could establish that enforcing the appeal waiver would result

in a miscarriage of justice, see Hahn, 359 F.3d at 1327, Mr. Almaraz has agreed to

raise any such claim in a collateral proceeding, consistent with this court’s decision

in Porter.




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

and dismiss the appeal. This dismissal is without prejudice to Mr. Almaraz filing a

§ 2255 motion that raises claims of ineffective assistance of counsel in connection

with his guilty plea or appeal waiver.



                                           Entered for the Court
                                           Per Curiam




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