                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       March 2, 2007
                           FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                        Clerk of Court

    U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,

    v.                                                  No. 06-2338
                                                  (D.C. No. CR-05-977 RB)
    SA M M Y RO D RIG U EZ-D ELG ADO,                    (D . N.M .)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before O’BRIEN, EBEL, and M cCO NNELL, Circuit Judges.




         Defendant Sammy Rodriguez-Delgado was indicted with a codefendant on

charges of conspiracy and possession with intent to distribute cocaine arising out

of an incident involving 14.99 grams of cocaine. M r. Rodriguez-Delgado pled

guilty to possession with intent to distribute five kilograms or more of cocaine, in

violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A) and 18 U.S.C. § 2. His plea




*
      This panel has determined unanimously 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 This order and judgment is not binding precedent, except under the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.
agreement states that he “knowingly waives the right to appeal this conviction

and/or any sentence within the statutory maximum authorized by law.” Plea

Agreement at 5. The agreement also recites his understanding that he faced a

sentence of “not less than ten (10) nor more than life” and “a mandatory

supervised release term of at least five (5) years.” Id. at 2. The district court

sentenced M r. Rodriguez-Delgado to 120 months in prison followed by a

five-year term of supervised release, and he appealed. The government has now

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). W e grant the motion

and dismiss the appeal.

      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 miscarriage-of-justice

prong requires the defendant to show (a) his sentence relied on an impermissible

factor such as race; (b) ineffective assistance of counsel in connection with the

negotiation of the appeal waiver rendered the waiver invalid; (c) his sentence

exceeded the statutory maximum; or (d) his appeal waiver is otherwise unlawful

and the error “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” Id. at 1327 (quotation omitted). The government’s motion




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addresses these considerations, explaining why none undermines the appeal

waiver here.

       M r. Rodriguez-Delgado opposes the government’s motion solely on the

ineffective-assistance component of the miscarriage-of-justice test: “As is stated

in [M r. Rodriguez-Delgado’s] docketing statement, the ineffective assistance of

counsel is [his] primary issue on appeal and is therefore not barred by the

agreement as urged by the government.” A ppellant’s Response to the M otion to

Enforce Plea Agreement at 1; see Docketing Statement at 4, 6 (omitting formal

designation of issues, but requesting oral argument “on complicated issues of

ineffective assistance of counsel as well as other issues”). There are two basic

deficiencies in this attempt to keep the present appeal alive.

       M r. Rodriguez-Delgado’s conclusory reference to his legal representation

gives no indication that his objection relates – as it must to have any bearing on

the enforcement of his appeal waiver – to “ineffective assistance of counsel in

connection with the negotiation of the appeal waiver render[ing] the waiver

invalid.” Hahn, 359 F.3d at 1327; cf. United States v. Porter, 405 F.3d 1136,

1144 (10th Cir.), cert. denied, 126 S. Ct. 550 (2005) (similarly refusing to void

appeal waiver in light of alleged sentencing error, because “[t]he relevant

question . . . is not whether [the] sentence is unlawful . . ., but whether . . . [the]

appeal waiver itself [is] unenforceable” (emphasis added)). W ithout this specific

connection to the appeal waiver, a generalized “objection about trial counsel’s

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performance [is] insufficient to open the Hahn door for this appeal.” United

States v. Quintana-Navarette, 192 F. App’x 790, 793 (10th Cir. 2006); cf. United

States v. Sarber, 196 F. App’x 673, 675 (10th Cir. 2006) (holding argument to

circumvent appeal waiver based on claim of error untethered to waiver itself “is

fundamentally misdirected” under principles clarified in Hahn and Porter).

      Even if M r. Rodriguez-Delgado intends to challenge counsel’s performance

in a respect materially relevant to the appeal waiver, this appellate proceeding is

not the proper vehicle for that challenge. Because the record before us includes

only formal representations by M r. Rodriguez-Delgado reflecting the adequacy of

his representation in the plea proceedings, any ineffective-assistance claim would

have to rely on extra-record exchanges between counsel and client beyond our

purview. Such a claim must be brought in a motion under 28 U.S.C. § 2255

rather than by appeal, United States v. Delacruz-Soto, 414 F.3d 1158, 1168 (10th

Cir. 2005), and “[t]his rule applies even where a defendant seeks to invalidate an

appellate waiver based on ineffective assistance of counsel,” Porter, 405 F.3d at

1144 (citing Hahn, 359 F.3d at 1327 n.13). Indeed, M r. Rodriguez-Delgado’s

plea agreement preserves his right to bring a § 2255 motion “on the issue of

ineffective assistance of counsel.” Plea Agreement at 5. Accordingly, we shall

grant the government’s motion to dismiss this appeal, without prejudice to the

merits of any ineffective-assistance claims M r. Rodriguez-Delgado may elect to

pursue in collateral proceedings under § 2255.

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      The government’s motion is granted and this appeal is DISM ISSED. The

mandate shall issue forthwith.


                                    ENTERED FOR THE COURT
                                    PER CURIAM




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