                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 21, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 09-3383
    v.                                         (D.C. No. 2:07-CR-20168-JWL-8)
                                                           (D. Kan.)
    JAMES HEAGS,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, TYMKOVICH, and HOLMES, Circuit Judges.



         This matter is before the court on the government’s motion to enforce the

appeal waiver contained in defendant James Heags’s plea agreement. The

defendant pleaded guilty to conspiracy to distribute or possess with intent to

distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 846.

The district court sentenced defendant to a total of 235 months’ imprisonment.



*
      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 This order and judgment is not binding precedent, except under the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.
This sentence was below the statutory maximum of life imprisonment and at the

low end of the 235 to 293 month advisory guideline range determined by the

district court. In his plea agreement, the defendant “knowingly and voluntarily

waive[d] any right to appeal or collaterally attack any matter in connection with

[his] prosecution, conviction and sentence.” Mot. to Enforce, attached Plea

Agreement at 6. As to his sentence, the defendant expressly agreed to waive “any

right to appeal a sentence imposed which is within the guideline range determined

appropriate by the court.” Id. Nevertheless, the defendant filed a notice of

appeal, seeking to challenge his sentence. 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). We grant the government’s motion and dismiss the

appeal.

      In Hahn, this court held that “in reviewing appeals brought after a

defendant has entered into an appeal waiver,” this court will determine “(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.” 359 F.3d at 1325. A miscarriage of justice will result if (1) “the district

court relied on an impermissible factor such as race”; (2) “ineffective assistance

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




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invalid”; (3) “the sentence exceeds the statutory maximum”; or (4) “the waiver is

otherwise unlawful.” Id. at 1327 (quotations omitted).

      The defendant intends to claim on appeal that the district court erred in

denying his motion for a variance and in overruling his objections to the

presentence report (PSR). The defendant admits that his appeal falls within the

scope of his appeal waiver. He asserts that his appeal waiver was not knowingly

and voluntarily entered and that it would be a miscarriage of justice to enforce it

because “one of his issues on appeal is whether the court erred in considering

relevant conduct that he did not know would be used to calculate the Guidelines

sentence imposed.” Response at 9. We have repeatedly held, however, that

appellate waivers are enforceable even though a defendant did not know exactly

how the waiver might apply. See Hahn, 359 F.3d at 1326 (rejecting the argument

that “a defendant can never knowingly and voluntarily waive his appellate rights

because he cannot possibly know in advance what errors a district court might

make in the process of arriving at an appropriate sentence”); United States v.

Montano, 472 F.3d 1202, 1205 (10th Cir. 2007) (rejecting argument that an

appeal waiver is unenforceable when a defendant does not know what the

sentencing range will be when entering the plea agreement). Looking at the

language of the plea agreement and the plea colloquy, it is clear that the

defendant was advised of the consequences of his appeal waiver, as he concedes.

Response at 10. He repeatedly told the court that he understood those

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consequences and was knowingly and voluntarily agreeing to the appeal waiver,

Mot. to Enforce, attached Tr. of Plea Hearing, at 21-23. Thus, the defendant has

failed to establish that he did not knowingly and voluntarily agree to his appeal

waiver. Further, we have held that alleged sentencing errors do not establish that

enforcement of the appeal waiver would be unlawful under the

miscarriage-of-justice inquiry. See United States v. Sandoval, 477 F.3d 1204,

1208 (10th Cir. 2007) (“Our inquiry is not whether the sentence is unlawful, but

whether the waiver itself is unlawful.”).

      The defendant’s miscarriage-of-justice argument also rests on claims of

ineffective assistance of counsel in connection with the negotiation of the appeal

waiver. An ineffective assistance of counsel claim must ordinarily be raised in a

collateral 28 U.S.C. § 2255 proceeding. See United States v. Porter, 405 F.3d

1136, 1144 (10th Cir. 2005) (holding that this rule applies even where a defendant

seeks to invalidate an appellate waiver based on ineffective assistance of

counsel). Thus, this claim is not properly brought on direct appeal. We have held

that a plea agreement waiver of postconviction rights does not waive the right to

bring a 28 U.S.C. § 2255 motion based on ineffective assistance of counsel claims

that challenge the validity of the plea or the appeal waiver. United States v.

Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). Indeed, the defendant’s

appeal waiver expressly recognizes his right to bring such an ineffective

assistance of counsel claim in a § 2255 motion. Plea Agreement at 6. Thus,

                                            -4-
defendant is not prohibited by the appeal waiver from raising his ineffective

assistance of counsel claims in a § 2255 motion.

      The government’s motion is GRANTED, and the appeal is DISMISSED,

without prejudice to the defendant’s right to raise an ineffective assistance of

counsel claim in a collateral proceeding.



                                       ENTERED FOR THE COURT
                                       PER CURIAM




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