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

                             FOR THE TENTH CIRCUIT                         January 10, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-2138
                                                  (D.C. No. 2:17-CR-01163-KG-1)
RAFAEL ORDUNO-RAMIREZ,                                       (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
                  _________________________________

      Rafael Orduno-Ramirez pled guilty to drug and immigration offenses and was

sentenced to 44 months in prison. His plea agreement included a broad waiver of his

appellate rights provided his sentence was at or under the maximum statutory penalty,

which it was. Notwithstanding his appeal waiver, Mr. Orduno-Ramirez now seeks to

challenge his sentence. The government has moved to enforce the appeal waiver under

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This order and judgment is not binding precedent, except under the doctrines of law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.
       Hahn sets forth three factors to consider in evaluating an appeal waiver:

“(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. One way a defendant can demonstrate that enforcing the appellate

waiver will result in a miscarriage of justice is to show that he received ineffective

assistance of counsel in connection with the negotiation of the waiver, rendering the

waiver invalid. See id. at 1327.

       Mr. Orduno-Ramirez does not contest that his appeal falls within the

scope of the appeal waiver. Instead, he disputes the second and third Hahn factors

on the ground that he received ineffective assistance from his trial counsel.

Mr. Orduno-Ramirez asserts that the waiver was not knowing and voluntary because

his lawyer did not communicate with him and coerced him into signing the plea

agreement, though he acknowledges he made contrary representations in the plea

agreement and during the Rule 11 colloquy. Similarly, he contends that enforcing the

waiver would result in a miscarriage of justice because his trial counsel provided

ineffective assistance in negotiating it. As evidence of ineffectiveness, he points to a

pro se letter sent to the district court shortly after he signed the plea agreement, in

which he complained about his representation and successfully requested the

appointment of new counsel.

       “[A] defendant must generally raise claims of ineffective assistance of counsel

in a collateral proceeding, not on direct review. This rule applies even where a

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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) (citation

omitted); see also Hahn, 359 F.3d at 1327 n.13 (“Generally, we only consider

ineffective assistance of counsel claims on collateral review. Our holding today does

not disturb this longstanding rule.” (citation omitted)). This is because it is important

to develop a factual record for ineffective-assistance claims in the district court. See

United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc); see also

United States v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011) (explaining that “this

court has considered ineffective assistance of counsel claims on direct appeal in

limited circumstances, but only where the issue was raised before and ruled upon by

the district court and a sufficient factual record exists”). Mr. Orduno-Ramirez

concedes that “we do not have a properly and fully developed evidentiary record” on

his allegations of ineffective assistance. Resp. to Mot. to Enforce at 3.

      When a defendant “offers no argument supporting a reason to depart from our

general practice,” as is the case here, we have declined to consider

ineffective-assistance claims on direct appeal. Porter, 405 F.3d at 1144.

Accordingly, we grant the motion to enforce and dismiss the appeal, without

prejudice to Mr. Orduno-Ramirez raising allegations of ineffective assistance of

counsel in a collateral proceeding.


                                            Entered for the Court
                                            Per Curiam



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