                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          June 6, 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,

     v.                                                   No. 07-3026
                                                  (D.C. No. 04-CR-20115-JW L)
    C ARLO S R OB ER TO O RTEG A,                           (D . Kan.)
    also known as BoBe,

              Defendant-Appellant.



                              OR D ER AND JUDGM ENT *


Before O’BRIEN, EBEL, and HO LM ES, Circuit Judges.




          Carlos Roberto Ortega pled guilty, pursuant to a plea agreement, to three

counts of distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C) and one count of using a communication facility to facilitate a

drug-trafficking felony in violation of 21 U.S.C. § 843(b). The district court

sentenced him to 108 months’ imprisonment, a sentence at the low end of 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 This order and judgment is not binding precedent, except under the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.
guideline range determined applicable by that court. Although his plea agreement

included a waiver of his right to appeal any sentence that did not depart upwards

from the sentencing guideline range determined by the district court, see Plea

Agreement at 6, M r. Ortega filed a pro se notice of appeal. 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). W e grant the motion and dismiss the

appeal.

      In Hahn, this court held that a w aiver of appellate rights w ill be enforced if

(1) “the disputed appeal falls within the scope of the waiver of appellate rights”;

(2) “the defendant knowingly and voluntarily waived his appellate rights”; and

(3) “enforcing the waiver would [not] result in a miscarriage of justice.”

359 F.3d at 1325. A miscarriage of justice will result if (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 renders the waiver

invalid”; (c) “the sentence exceeds the statutory maximum”; or (d) “the waiver is

otherwise unlawful.” Id. at 1327 (quotation omitted). For an “otherwise

unlaw ful” w aiver, the error must seriously affect the fairness, integrity, or public

reputation of the judicial proceedings. See United States v. Olano, 507 U.S. 725,

732 (1993); Hahn, 359 F.3d at 1327.

      The government’s motion to enforce addresses each of the three Hahn

factors, but M r. Ortega argues only that enforcing the appellate waiver would

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result in a miscarriage of justice. W e therefore only address this third factor. See

United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (recognizing each

Hahn factor need not be addressed if defendant does not make argument with

respect to that factor).

      M r. Ortega argues in his response to the government’s motion to enforce

the appeal waiver that the sentence he received is a miscarriage of justice because

it is greater than the sentence he expected to receive, based on his discussions

with his trial attorney. 1 In his pro se notice of appeal, he challenged the

reasonableness of the sentence, asserting that he pled guilty to and agreed to a

sentence of forty-six to fifty-seven months of imprisonment. M r. Ortega’s

arguments appear to fall within the second and fourth miscarriage-of-justice

categories. W e discuss each in turn.

      Assuming that M r. Ortega has asserted an ineffective assistance of counsel

claim in connection with the negotiation of the appeal waiver, the claim is not a

basis for an appeal, but rather only for a possible motion for collateral relief

under 28 U.S.C. § 2255. See United States v. Delacruz-Soto, 414 F.3d 1158, 1168

(10th Cir. 2005) (holding that ineffective assistance of counsel claims should be

brought in collateral proceedings, not on direct appeal). But see also Plea

Agreement at 6 (w aiving right to bring § 2255 action).



1
      M r. Ortega’s trial counsel has withdrawn and new counsel has been
appointed by this court.

                                          -3-
       M r. Ortega has failed to meet his burden to persuade us that his appeal

waiver is unlawful. See United States v. M aldonado, 410 F.3d 1231, 1233

(10th Cir.) (per curiam), cert. denied, 126 S. Ct. 577 (2005). His argument that

his sentence is too long is not an argument that “the w aiver is otherwise

unlawful.” Hahn, 359 F.3d at 1327 (quotation omitted). “The relevant question .

. . is not whether [his] sentence is unlawful . . . , but whether . . . his appeal

waiver itself [is] unenforceable.” Porter, 405 F.3d at 1144; see also Hahn,

359 F.3d at 1326 & n.12 (addressing knowing and voluntary factor and noting

improperness of focusing on result of proceeding instead of on right

relinquished). Allowing an alleged sentence computation error to render the

waiver unlawful would nullify the waiver based on the very type of claim the

waiver was intended to waive.

       M r. Ortega has failed to assert any claim that his appeal waiver itself was

unlaw ful, and therefore has not shown that the enforcement of the waiver would

seriously affect the fairness, integrity, or public reputation of the judicial

proceedings. In this regard, we note that the plea agreement and plea colloquy

made clear that he understood that (1) he faced a possible maximum sentence of

sixty-four years’ imprisonment; (2) he waived his right to appeal any sentence

within the guideline range as determined by the district court; (3) the district

court would determine his sentence; (4) the district court did not know at the time

of the plea hearing what his sentence would be; (5) his counsel could not make

                                            -4-
any promises or guarantees about what the sentence w ould be; and (6) counsel’s

estimate of what his sentence might be would not control. In addition, M r. Ortega

agreed not to request a sentence below the low end of the guideline range

determined by the district court. Thus, the sentence he received complied with

the terms of the plea agreement and with his understanding of the plea. See

M aldonado, 410 F.3d at 1234. His objections to the reasonableness of his

sentence do not establish that enforcement of his appeal waiver is unlawful. See

United States v. M ontano, 472 F.3d 1202, 1205 (10th Cir. 2007) (declining to

adopt rule that appeal waiver is unenforceable where defendant did not know at

time of plea agreement what sentence range would be and that resulting sentence

was greater than anticipated).

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

the appeal is DISM ISSED. The mandate shall issue forthwith.



                                      ENTERED FOR THE COURT
                                      PER CURIAM




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