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

                            FOR THE TENTH CIRCUIT                             July 21, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 20-1043
                                                  (D.C. No. 1:19-CR-00375-DDD-1)
 JUAN CARLOS DE JESUS, a/k/a Juan                             (D. Colo.)
 Carlos De Jesus-Ponce, a/k/a Juan Carlos
 Dejesus,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

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

      Juan Carlos De Jesus pleaded guilty to illegal re-entry of a previously deported

alien, following an aggravated felony conviction, in violation of 8 U.S.C. §§ 1326(a)

and (b)(2). He was sentenced to serve 41 months in prison. 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 the plea agreement pursuant

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




      *
         This order and judgment is not binding precedent, except under the doctrines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. The government asserts that all of the

Hahn conditions have been satisfied because: (1) Mr. De Jesus’s appeal is within the

scope of the appeal waiver; (2) he knowingly and voluntarily waived his appellate

rights; and (3) enforcing the waiver would not result in a miscarriage of justice.

      In response to the government’s motion, Mr. De Jesus contends that, because

of ineffective assistance of his counsel, his plea was not knowing and voluntary. But

he recognizes that he cannot raise this argument on appeal and must wait to raise it in

a collateral proceeding. See United States v. Porter, 405 F.3d 1136, 1144 (10th Cir.

2005). He therefore concedes he “cannot set forth a good-faith argument as to why

the government’s motion should be denied.” Resp. at 2. Based on this concession

and our independent review of the record, we grant the government’s motion to

enforce the appeal waiver and dismiss the appeal. This dismissal does not affect

Mr. De Jesus’s right to pursue post-conviction relief on the grounds permitted in his

plea agreement.


                                            Entered for the Court
                                            Per Curiam




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