                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       August 1, 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,
                                                        No. 07-3073
    v.                                          (D.C. No. 06-CR-40101-RDR)
                                                          (D . Kan.)
    D A RRIC K S. K LIM A ,

                Defendant-Appellant.



                              OR D ER AND JUDGM ENT *


Before H E N RY, M U RPH Y, and O’BRIEN, Circuit Judges.




         Defendant Derrick S. Klima pled guilty pursuant to a plea agreement to

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g).

As part of the plea agreement, Klima waived his right to “appeal or collaterally

attack any matter in connection with this prosecution, conviction and sentence.”

M ot. to Enforce, Attach. 2 (Plea Agreement) at 6. Specifically, Klima waived




*
      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 This order and judgment is not binding precedent, except under the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.
“any right to appeal a sentence imposed which is within the guideline range

determined appropriate by the court” and further waived any attempt to

collaterally attack the sentence pursuant to 28 U.S.C. § 2255, except as limited by

United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). M ot. to

Enforce, Attach.2 (Plea Agreement) at 6.

      After the plea agreement was accepted by the district court, both the

probation officer in his presentence report and the government argued that

Klima’s prior conviction, aggravated indecent solicitation of a child, should be

considered a crime of violence for purposes of sentencing. Klima states that “[i]t

was not until counsel received the initial draft of the presentence report that

M r. Klima was made aware of the enhanced sentence for a prior conviction

involving a crime of violence and its application to his case.” Resp. to M ot. to

Enforce at 6. Under U.S.S.G. § 2K2.1, if the prior felony was considered a crime

of violence, a mandatory base offense level of 20 applied rather than the offense

level of 12 as had been represented to Klima by counsel.

      The parties argued the crime-of-violence categorization at the sentencing

hearing, with the district court concluding that Klima’s prior felony was a crime

of violence and that the appropriate sentence w as twenty-seven months’

incarceration with two years’ supervised release, a sentence within the applicable

advisory guideline range.




                                          -2-
      Although Klima waived his appellate rights, he nonetheless filed this

appeal challenging the district court’s determination of his sentence. The

government has filed a motion to enforce Klima’s waiver of appellate rights under

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

Klima has responded that the motion should be denied because enforcing the plea

agreement will result in a miscarriage of justice due to the ineffective assistance

of counsel he received in connection with the negotiation of the appeal w aiver.

As discussed below, we conclude that Klima’s ineffective assistance of counsel

argument is not barred by the appeal waiver, but we dismiss the appeal because

this matter is more properly brought under 28 U.S.C. 2255. 1

      The enforceability of an appeal waiver is assessed according to a

three-pronged inquiry: (1) whether the appeal falls within the scope of the

waiver, (2) whether the defendant’s waiver of his rights was knowing and

voluntary, and (3) whether a miscarriage of justice would result from enforcement

of the waiver. Hahn, 359 F.3d at 1325. A miscarriage of justice can only result




1
        Klima argues that the government’s motion to enforce the plea agreement
was not filed within fifteen days of his notice of appeal and thus should be denied
as untimely. W e note that our Rule 27.2(A)(3) requires only that a m otion to
enforce a plea agreement be filed within fifteen days after the notice of appeal
“[i]f possible.” An untimely motion will be accepted for filing upon a showing of
good cause. Id. The government’s representation that, at the time it filed its
motion for enforcement of the plea agreement, the transcript of the change of plea
hearing was not yet available establishes good cause for the government’s late
filing.

                                         -3-
where one of four situations has occurred, including when “‘ineffective assistance

of counsel in connection with the negotiation of the waiver renders the waiver

invalid.’” Id. at 1327 (quoting United States v. Elliott, 264 F.3d 1171, 1173 (10th

Cir. 2001)).

      Klima argues that his counsel’s failure to understand and subsequently

explain to him the risk that his previous conviction could be deemed a crime of

violence under U.S.S.G. § 2K2.1(a)(4)(A) amounted to ineffective assistance of

counsel in connection with the negotiation of the plea and the waiver. His

counsel’s deficient performance, he argues, amounts to a miscarriage of justice

under Hahn, resulting in an involuntary and unknowing waiver of his rights which

should entitle him to withdraw his plea.

      As support for his claim of ineffective assistance, Klima points to counsel’s

statements made during the sentencing hearing, which Klima maintains

demonstrate counsel’s (and logically his own) lack of awareness of the extent to

which his appellate rights would be limited by the appeal waiver. Specifically,

after the district court ruled that Klima’s prior felony was a crime of violence,

counsel asked the court to grant Klima an appeal bond because, given the fact of

incarceration, “w e think that issue is important enough that the Tenth Circuit

should make that decision, because of the loss of liberty in this case.” M ot. to

Enforce, Attach. 3 (Sentencing Hr’g Tr.) at 24. Counsel further stated that




                                           -4-
      if . . . the Court issues a sentence of incarceration in this case, . . .
      that one issue before the Tenth Circuit I think would have to be
      appealed. Even with the plea agreement, there’s a question of the
      total offense score if the Court issues a range of sentence within the
      total offense score.

Id.

      After the district court stated its opinion that Klima had waived his

appellate rights by his plea agreement, counsel (despite reading aloud the waiver

provisions in open court) argued that, if the district court were in error as to an

offense level of 20, “we would have a right to appeal that determination as to the

basic offense level determined by the Court.” Id. at 29.

      Klima alleges that the ineffective assistance of counsel he received in the

way of misinformation and/or lack of information as to the risk he faced on

sentencing, resulted in an unknowing waiver of his appellate rights. To buttress

this claim, Klima argues that

      [w]ith full benefit of counsel, M r. Klima could have chosen either to
      proceed to trial or to plead guilty without entering into an agreement
      that gave up his appellate rights – the latter of these choices being
      particularly appropriate w here there were no other charges to be
      dismissed pursuant to the plea agreement.

Resp. to M ot. to Enforce at 7. Klima contends that the plea agreement gave him

“little more benefit tha[n] if he had entered an ‘open’ guilty plea.” Id. at 9-10.

      After reviewing the record and Klima’s allegations, this court determines

that Klima’s ineffective assistance of counsel claim is not barred by the appeal

waiver. His claim implicates the narrow exception recognized in Hahn and Elliott

                                          -5-
and explained in Cockerham, 237 F.3d at 1184, that claims of ineffective

assistance of counsel in negotiation of a plea agreement cannot be barred by the

agreement’s appeal-waiver provision. Klima’s narrowly drawn argument is that

his counsel fundamentally misunderstood the scope of the appeal waiver and did

not know of or apprise Klima of the risk that his prior felony could be considered

a crime of violence. See United States v. Broce, 488 U.S. 563, 574 (1989) (noting

that “[a] failure by counsel to provide advice may form the basis of a claim of

ineffective assistance of counsel”). As such, he impugns counsel’s performance

in the negotiation of the plea agreement and waiver. In Cockerham this court

adopted the view that “[i]t is altogether inconceivable to hold such a waiver

enforceable w hen it would deprive a defendant of the opportunity to assert his

Sixth Amendment right to counsel where he had accepted the waiver in reliance

on delinquent representation.” 237 F.3d at 1184 (quotation omitted). Klima’s

claim makes the required connection between ineffective assistance of counsel

and his acceptance of the plea agreement and appeal waiver. His claim, therefore,

falls within the Elliott/Hahn miscarriage-of-justice exception to the enforceability

of his appeal waiver. 2




2
       Klima’s claim of ineffective assistance does not go to his counsel’s
performance at sentencing, a claim waived in his plea agreement. See United
States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001) (holding that this type
of claim is waivable). Klima cites to the record of the sentencing hearing only for
evidence going to counsel’s misunderstanding of the already-negotiated waiver.

                                         -6-
      Claims of ineffective assistance of counsel, however, should generally be

brought in a collateral proceeding rather than on direct appeal. Hahn, 359 F.3d at

1327 n.13; United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en

banc) (“Ineffective assistance of counsel claims . . . brought on direct appeal are

presumptively dismissible, and virtually all will be dismissed.”). Absent limited

exceptions not applicable here, this court will dismiss such claims, determining

them to be more appropriate for factual development during collateral

proceedings in the district court. Galloway, 56 F.3d at 1240; United States v.

Edgar, 348 F.3d 867, 869 (10th Cir. 2003) (noting this court’s preference to defer

consideration even when issues are sufficiently developed). The factual record

here is not sufficiently developed for this court to consider the merits of K lima’s

claim, and we see no other reason to depart from our general practice.

      This court, therefore, declines to reach the merits of Klima’s ineffective

assistance of counsel claim. 3 If Klima pursues this claim, he must do so under 28

U.S.C. § 2255. Cockerham, 237 F.3d at 1187 (“[A] plea agreement waiver of

post-conviction rights does not waive the right to bring a § 2255 petition based on

ineffective assistance of counsel claims challenging the validity of the plea or the

waiver.”).



3
       To the extent Klima argues that the district court erred in failing to discuss
the appellate waiver during the plea colloquy, we find this claim meritless. The
district court adequately explained to Klima that his plea agreement contained a
waiver of his right to appeal. Tr. Change of Plea Hr’g at 11.

                                          -7-
      The government’s motion to enforce the waiver is GRANTED, and the

appeal is DISM ISSED. Klima must pursue his ineffective assistance of counsel

claim, if at all, in a collateral proceeding.

      The mandate shall issue forthwith.



                                         ENTERED FOR THE COURT
                                         PER CURIAM




                                            -8-
