                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS                  June 23, 2010
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 10-3008
                                              (D.C. No. 2:06-CR-20122-KHV-1)
    JOSEPH M. UMAN,                                       (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, HARTZ, and GORSUCH, Circuit Judges.



         Joseph M. Uman pleaded guilty pursuant to a plea agreement to knowingly

possessing a stolen firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). The

district court sentenced him to 120 months’ imprisonment, the statutory

maximum. Although Mr. Uman’s plea agreement included a waiver of his right to

appeal his sentence, he has filed an appeal seeking to challenge his sentence.



*
      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 This order and judgment is not binding precedent, except under the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.
Relying on our decision in United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)

(en banc) (per curiam), the government has filed a motion to enforce the appeal

waiver.

      In determining whether to enforce the appeal waiver, Hahn directs that 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.

      Mr. Uman concedes that the issue he seeks to assert relating to the

reasonableness of his sentence falls within the scope of the plea agreement’s

appeal waiver and that he knowingly and voluntarily waived his appeal rights.

He, however, contends that enforcing the appeal waiver may have resulted in a

miscarriage of justice because he received ineffective assistance of counsel in

negotiating the waiver of his appellate rights. But he also recognizes that this

issue must be raised in a motion to vacate, set aside, or correct his sentence

pursuant to 28 U.S.C. § 2255. See, e.g., United States v. Porter, 405 F.3d 1136,

1144 (10th Cir. 2005). Thus, he seeks to reserve this issue should he file a § 2255

motion.

      It is settled that a claim of ineffective assistance of counsel concerning the

negotiation of a plea agreement cannot be barred by the appeal waiver provision.

See United States v. Cockerham, 237 F.3d 1179, 1184 (10th Cir. 2001).

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Accordingly, our enforcement of the appeal waiver and dismissal of this appeal is

without prejudice to Mr. Uman’s pursuing a claim of ineffective assistance of

counsel in a § 2255 proceeding.

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

waiver contained in the plea agreement and DISMISS this appeal without

prejudice to Mr. Uman’s pursuit of § 2255 relief. Also, we GRANT defense

counsel’s motion to withdraw.


                                      ENTERED FOR THE COURT
                                      PER CURIAM




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