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

                           FOR THE TENTH CIRCUIT                       August 14, 2013

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                          No. 13-3164
v.                                             (D.C. No. 6:12-CR-10197-MLB-1)
                                                           (D. Kan.)
TRACY LAMARK KING,

             Defendant-Appellant.


                           ORDER AND JUDGMENT*


Before HARTZ, EBEL, and PHILLIPS, Circuit Judges.


      Tracy Lamark King pleaded guilty, pursuant to a plea agreement, to one count

of knowingly possessing with intent to distribute fifty or more grams of a mixture or

substance containing cocaine base in violation of 21 U.S.C. § 841(a)(1). The district

court sentenced him to 188 months of imprisonment, at the low end of the guidelines

range of 188 to 235 months. Under the terms of the plea agreement, Mr. King


*
       This panel has determined that oral argument would not materially assist 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
waived his right to appeal his conviction and his sentence if it did not depart upwards

from the guidelines range. Despite the waiver, he filed a notice of appeal, and he

seeks to challenge his sentence.

      The government moves, pursuant to United States v. Hahn, 359 F.3d 1315

(10th Cir. 2004), to enforce the plea agreement and to dismiss the appeal. In

evaluating an appeal waiver, Hahn directs us to 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. King, through counsel, agrees with the government that the motion to

enforce may be granted and the appeal may be dismissed. Counsel admits that the

appeal is within the scope of the appeal waiver, Mr. King knowingly and voluntarily

waived his right to appeal, and nothing in the record indicates the district court relied

on an impermissible sentencing factor. Counsel states, however, that it is unclear

whether Mr. King claims that counsel provided ineffective assistance in negotiating

the plea agreement or with respect to the government’s failure to file a motion under

U.S.S.G. § 5K1.1 for departure from the guidelines for substantial assistance.

See Resp. at 1.

      Upon our independent review of the parties’ filings, the plea agreement, the

transcript of the plea hearing, and the transcript of the sentencing hearing, we

conclude that Mr. King waived his right to bring this appeal. To the extent he may


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seek to challenge his counsel’s effectiveness in negotiating the plea agreement, he

should do so in a 28 U.S.C. § 2255 proceeding. See United States v. Porter, 405 F.3d

1136, 1144 (10th Cir. 2005).

      Accordingly, we grant the government’s motion to enforce the plea agreement,

and we dismiss this appeal. Finally, although we note Mr. King has not yet filed a

completed application to proceed in forma pauperis, based on our review of the CJA

23 form on file in the district court and the financial information contained in the

Presentence Report, we sua sponte grant ifp status for this proceeding.


                                                Entered for the Court
                                                Per Curiam




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