                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 19, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 09-2311
                                               (D.C. No. 2:09-CR-02386-JAP-1)
    MARIO TORRES-CAMPOS,                                   (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, EBEL, and TYMKOVICH, Circuit Judges.


         Mario Torres-Campos pled guilty to being an alien who illegally re-entered

the United States after having been deported after conviction of a felony in

violation of 8 U.S.C. § 1326(a) and (b). 1 Under the terms of his plea agreement,

he waived his right to appeal his conviction and any sentence within the


*
      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 This order and judgment is not binding precedent, except under the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.
1
      The sentencing transcript indicates that Mr. Torres-Campos has four felony
and twenty misdemeanor convictions, has a prior illegal reentry conviction, and
has been deported four times.
applicable advisory guidelines range determined by the district court. The court

imposed a sentence of twenty-one months of imprisonment, which was at the

bottom of the undisputed guidelines range of twenty-one to twenty-seven months.

Despite the appeal waiver in the plea agreement, Mr. Torres-Campos appealed.

The government has moved to enforce the appeal waiver under United States v.

Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). For the reasons

stated below, we 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 that (a) “the district court relied on an

impermissible factor such as race”; (b) “ineffective assistance of counsel in

connection with the negotiation of the waiver render[ed] the waiver invalid”;

(c) his “sentence exceed[ed] the statutory maximum”; or (d) his appeal “waiver is

otherwise unlawful.” Id. at 1327 (quotations omitted). The government’s motion

addresses all three prongs of the Hahn test, and explains why Mr. Torres-Campo’s

appeal waiver is not undermined.

      In response to the government’s motion, Mr. Torres-Campos’s counsel

stated that under Anders v. California, 386 U.S. 738 (1967), this appeal is

frivolous. We provided Mr. Torres-Campos copies of the government’s motion to

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enforce and counsel’s response and gave him the opportunity to argue why this

appeal should be heard despite his appeal waiver. In his response, which we

liberally construe, see Haines v. Kerner, 404 U.S. 519, 520 (1972), he makes

several jurisdictional arguments: (1) he is not subject to the law because he is not

a United States citizen; (2) under the Treaty of Guadalupe Hidalgo and the

Gadsden Purchase Treaty, the district court lacked jurisdiction; (3) the district

court lacked subject matter jurisdiction; and (4) the government has not filed an

acceptance of jurisdiction as is required by the Assimilated Crimes Act. He also

contends that counsel promised to file an appeal.

      Although a guilty plea does not waive jurisdictional objections to a

conviction, United States v. Fields, 516 F.3d 923, 928 (10th Cir. 2008), we can

easily conclude that the jurisdictional arguments Mr. Torres-Campos raises are

meritless. Congress has plenary power to pass laws controlling the admission and

exclusion of aliens. See Kleindienst v. Mandel, 408 U.S. 753, 765-67 (1972).

That power includes the power to pass criminal laws imposing penalties upon

persons who enter the United States unlawfully. See United States v.

Hernandez-Guerrero, 147 F.3d 1075, 1076-78 (9th Cir. 1998) (holding Congress

did not exceed its constitutional authority in enacting § 1326). Further, the

district court has subject-matter jurisdiction over “all offenses against the laws of

the United States” under 18 U.S.C. § 3231, including the offense at issue in this

case. As Mr. Torres-Campos himself recognizes, the Treaty of Guadalupe

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Hidalgo of 1848 involved land ceded by Mexico to the United States. See, e.g.,

New Mexico v. Aamodt, 537 F.2d 1102, 1105 (10th Cir. 1976); United States v.

Gardner, 107 F.3d 1314, 1317 (9th Cir. 1997). This treaty and the Gadsden

Purchase Treaty of 1853 guaranteed that the United States would respect property

rights of Mexicans located within the ceded land. See Tee-Hit-Ton Indians v.

United States, 348 U.S. 272, 288 n.20 (1955). Neither, however, concerns

federal-court jurisdiction over criminal charges against aliens. Because

Mr. Torres-Campos was not convicted under the Assimilated Crimes Act, that Act

is irrelevant to the question of jurisdiction.

      Mr. Torres-Campos may be arguing that his counsel was ineffective for not

filing an appeal. But counsel did file the appeal. Based upon our review of the

transcripts of the plea and sentencing hearings and the plea agreement,

Mr. Torres-Campos has not met his burden of showing ineffective assistance of

counsel in connection with the negotiation of the appeal waiver or otherwise

demonstrated that the waiver is invalid. See Hahn, 359 F.3d at 1327. Not only is

Mr. Torres-Campos’s objection about his counsel’s performance insufficient to

demonstrate a miscarriage of justice in general, to the extent that his objection

survives his plea waiver at all, it would not be a basis for an appeal, but rather

only for a possible motion for collateral review under 28 U.S.C. § 2255. See

United States v. Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005) (holding




                                           -4-
that claims of ineffective assistance of counsel should be brought in collateral

proceedings, and not on direct appeal).

      The government’s motion to enforce the appeal waiver is GRANTED, and

the appeal is DISMISSED.



                                       ENTERED FOR THE COURT
                                       PER CURIAM




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