                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   January 19, 2011
                     UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff!Appellee,
                                                         No. 10-2229
    v.                                         (D.C. No. 2:10-CR-00606-JEC-2)
                                                           (D. N.M.)
    MARIO ALDO SAUCEDA,

                Defendant!Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, MURPHY, and O’BRIEN, Circuit Judges.



         Mario Aldo Sauceda pleaded guilty to conspiracy to possess with the intent

to distribute less than five grams of methamphetamine in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(C), 846. The district court sentenced him to 188 months

in prison. In his plea agreement he waived his right to appeal his conviction or




*
      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 This order and judgment is not binding precedent, except under the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.
sentence, if the sentence was within the statutory maximum of thirty years, which

it was. Despite the appeal waiver, Mr. Sauceda filed a notice of appeal.

      Relying on United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc)

(per curiam), the government has moved to enforce the appeal waiver.

Mr. Sauceda’s counsel has moved to withdraw and has filed an Anders response.

See Anders v. California, 386 U.S. 738, 744 (1967) (authorizing counsel to

request permission to withdraw where counsel conscientiously examines case and

determines that appeal would be wholly frivolous). Counsel states that there are

no nonfrivolous grounds for a direct appeal. Counsel recognizes that Mr. Sauceda

may want to raise an ineffective assistance of counsel claim, but that he must do

so in a collateral proceeding under 28 U.S.C. § 2255. See, e.g., United States v.

Ibarra-Coronel, 517 F.3d 1218, 1222 (10th Cir. 2008) (recognizing that claims of

ineffective assistance of trial counsel usually must be raised in collateral

proceedings).

      Mr. Sauceda was given an opportunity to file a pro se response to the

motion to enforce. See Anders, 386 U.S. at 744. To date, he has not done so.

      Under Anders, we have conducted an independent review of the plea

agreement, plea hearing transcript, sentencing hearing transcript, and motion to

enforce. See id. After doing so, we conclude that the requirements for enforcing

the appeal waiver have been satisfied: (1) this “appeal falls within the scope of

the waiver of appellate rights”; (2) Mr. Sauceda “knowingly and voluntarily

                                          -2-
waived his appellate rights”; and (3) “enforcing the waiver would [not] result in a

miscarriage of justice.” Hahn, 359 F.3d at 1425. As counsel indicates,

Mr. Sauceda may properly bring an ineffective assistance of counsel claim

concerning the negotiation of his appeal waiver in a collateral proceeding.

      Accordingly, we GRANT the government’s motion to enforce the plea

agreement, GRANT counsel’s request to withdraw, and DISMISS the appeal.



                                       ENTERED FOR THE COURT
                                       PER CURIAM




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