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

                             FOR THE TENTH CIRCUIT                        August 16, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-2092
                                                 (D.C. No. 2:17-CR-00862-KG-1)
RICHARD ANTHONY NEVAREZ-                                    (D. N.M.)
BARELA,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, EBEL, and PHILLIPS, Circuit Judges.
                  _________________________________

      After entering into a plea agreement that included a waiver of his right to

appeal, Richard Anthony Nevarez-Barela pleaded guilty to conspiracy to transport

illegal aliens, a violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). He was sentenced to a

six-month term of imprisonment followed by up to six months in a halfway house,

which was within the advisory guidelines range. Despite the waiver, he appealed.

The government has moved to enforce the appeal waiver. See United States v. Hahn,



      *
         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This order and judgment is not binding precedent, except under the doctrines of law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.
359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). We grant the motion

and dismiss the appeal.

      Whether an appeal waiver is enforceable is a question of law. United States v.

Ibarra-Coronel, 517 F.3d 1218, 1221 (10th Cir. 2008). Under Hahn, we evaluate a

motion to enforce a waiver by considering “(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.” 359 F.3d at 1325. “The burden

rests with the defendant to demonstrate that the appeal waiver results in a miscarriage

of justice.” United States v. Anderson, 374 F.3d 955, 959 (10th Cir. 2004).

      Mr. Nevarez-Barela first argues that enforcing the waiver would result in a

miscarriage of justice because the district court failed to enunciate any rationale for

imposing his sentence. But enforcing an appeal waiver results in a miscarriage of

justice only in four situations: “[1] where the district court relied on an

impermissible factor such as race, [2] where ineffective assistance of counsel in

connection with the negotiation of the waiver renders the waiver invalid, [3] where

the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise

unlawful.” United States v. Polly, 630 F.3d 992, 1001 (10th Cir. 2011) (alteration in

original) (internal quotation marks omitted). Mr. Nevarez-Barela does not present

any facts or argument that would show any of these four situations occurred. His

argument about the sentencing hearing does not pertain to the lawfulness of the



                                            2
waiver itself. As a result, he has not shown that enforcing the waiver will result in a

miscarriage of justice.

      Mr. Nevarez-Barela next contends that the appeal waiver is unconscionable

because the government is not subject to a similar bar. But both the accused and the

government benefit from appeal waivers. “The essence of plea agreements . . . is that

they represent a bargained-for understanding between the government and criminal

defendants in which each side foregoes certain rights and assumes certain risks in

exchange for a degree of certainty as to the outcome of criminal matters.” United

States v. Porter, 405 F.3d 1136, 1145 (10th Cir. 2005). “A waiver of appellate rights

can be of great value to an accused as a means of gaining concessions from the

government,” while the government benefits “by saving . . . time and money involved

in arguing appeals.” United States v. Elliott, 264 F.3d 1171, 1174 (10th Cir. 2001)

(internal quotation marks omitted). Mr. Nevarez-Barela cites no authority for the

proposition that the lack of congruency between the benefits received by each side

from appeal waivers renders them unconscionable or undermines the strong public

policy reasons for favoring them, see id.

      Finally, Mr. Nevarez-Barela contends that he received ineffective assistance of

counsel in the negotiation of the appeal waiver that is not apparent on the face of the

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

counsel in a collateral proceeding, not on direct review.” Porter, 405 F.3d at 1144.

“This rule applies even where a defendant seeks to invalidate an appellate waiver

based on ineffective assistance counsel.” Id.

                                            3
The motion to enforce is granted, and this appeal is dismissed.


                                    Entered for the Court
                                    Per Curiam




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