                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      November 16, 2006
                            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. 06-5164
                                                    (D.C. No. 05-CR-117-C)
    A LFR EDO A RR AZO LA -C AR RENO,                     (N.D. Okla.)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before KELLY, HA RTZ, and TYM KOVICH, Circuit Judges.




         The government has moved to enforce its plea agreement with defendant

Alfredo Arrazola-Carreno. M r. Arrazola-Carreno’s appointed counsel responded

that there is no good-faith basis to dispute the validity of the plea agreement. 1 A t

this court’s request, M r. Arrazola-Carreno filed a pro se response arguing that his



*
      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 This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
     Counsel did not, however, specifically cite to Anders v. California,
386 U.S. 738 (1967), or move to withdraw as counsel.
counsel was ineffective for failing to correctly advise him about his possible

sentence and he should have received a lesser sentence. W e grant the

government’s motion to enforce and dismiss the appeal.

      M r. Arrazola-Carreno pled guilty to being a felon in possession of a firearm

in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). He was sentenced to 105

months’ imprisonment and three years’ supervised release. As part of the plea

agreement, he waived “the right to directly appeal the conviction and sentence

pursuant to 28 U.S.C. § 1291.” Plea Agreement at 3. He reserved the right to

appeal any sentence exceeding the statutory maximum or to file a 28 U.S.C.

§ 2255 motion to vacate, set aside, or correct his sentence based on an

ineffective-assistance-of-counsel challenge to the validity of his guilty plea or

waiver. Plea A greement at 3. Although his sentence w as w ithin the statutory

maximum of ten years’ imprisonment and three years’ supervised release, see id.

at 10-11, M r. A rrazola-Carreno appealed.

      The government subsequently filed a motion to enforce the waiver pursuant

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

In Hahn, 359 F.3d at 1325, we held that a waiver of appellate rights will 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) enforcement of “the waiver would result in a




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miscarriage of justice.” The miscarriage-of-justice factor requires the defendant

to show:

      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 invalid; 3) the sentence
      exceeds the statutory maximum; or 4) the w aiver is otherwise
      unlawful. To satisfy the last factor, the error must seriously affect
      the fairness, integrity or public reputation of judicial proceedings.

United States v. M aldonado, 410 F.3d 1231, 1233 (10th Cir.) (per curiam)

(quotations, alterations, and citation omitted), cert. denied, 126 S. Ct. 577 (2005).

      Because M r. Arrazola-Carreno’s arguments concern only the third Hahn

factor, w e address only this factor. See United States v. Porter, 405 F.3d 1136,

1143 (10th Cir.) (recognizing that court need not address each Hahn factor if

defendant does not raise issue relating to that factor), cert. denied, 126 S. Ct. 550

(2005).

      M r. Arrazola-Carreno first argues in his pro se response that his counsel did

not accurately advise him of his possible sentence under the Guidelines. 2 See Pro




2
       M r. Arrazola-Carreno also states that “this is not a withdraw[a]l of my
guilt[y] plea.” Pro Se Response at 2. But, in light of his further complaints about
counsel’s advise and his pointing out that the sentencing transcript reflects that
both his counsel and the government thought he would receive a lighter sentence
before the pre-sentence report was prepared, see Sentencing Tr. at 4-5, we believe
that he is actually arguing that counsel’s advise affected his decision whether to
plead guilty. And counsel concedes that “[i]t may be arguable that counsel was
ineffective in connection with the negotiation of the waiver of appeal, based on
the premise that the right to appeal was surrendered in exchange for an
unattainable benefit.” Counsel’s Response at 4.

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Se Response at 2-3. Liberally construing M r. Arrazola-Carreno’s pro se response,

see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we conclude that he has

sufficiently argued ineffective assistance of counsel with respect to his plea

waiver. See Hahn, 359 F.3d at 1327 (noting that ineffective assistance of counsel

is potential basis for avoiding appeal waiver, but specifically referring to

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

waiver render[ing] the waiver invalid”) (quotation omitted); see also United

States v. Grammas, 376 F.3d 433, 439 (5th Cir. 2004) (holding in § 2255 case that

where legal advise to defendant underestimated maximum punishment,

ineffectiveness inquiry included question whether defendant would have pled

guilty if he had known of possible sentence).

      M aking a sufficient ineffective-assistance argument does not end our

analysis of whether an appeal should be allowed to proceed, however. Typically,

an objection to counsel’s performance is not a basis for appeal, but, rather, must

be the subject of a motion for collateral relief under § 2255. See United States v.

Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005); see also Hahn, 359 F.3d at

1328 n.13 (declining to disturb long-standing rule that appellate court considers

ineffective assistance of counsel claims on collateral review ); Porter, 405 F.3d at

1144 (“This rule applies even where a defendant seeks to invalidate an appellate

waiver based on ineffective assistance of counsel.”). This case is no exception.

The record needs further development of the ineffective assistance of counsel

                                          -4-
argument, and we do not have the benefit of the district court’s views on that

issue. See Delacruz-Soto, 414 F.3d at 1168. W e therefore decline to allow the

appeal to proceed on the issue of ineffective assistance of counsel.

M r. Arrazola-Carreno must raise this issue in a proper § 2255 collateral

proceeding, as the plea agreement permits him to do.

      M r. Arrazola-Carreno makes tw o other arguments in his pro se response to

the motion to enforce, presumably arguing that errors in the district court’s

sentencing decision affected the fairness, integrity, or public reputation of his

judicial proceedings. He argues that the district court improperly sentenced him

on Count 2, which had been dismissed. Nothing in the sentencing transcript or

the court’s judgment, however, supports this argument.

      He further argues that he “did everything by the book” and he deserved a

lighter Guidelines sentence. Pro Se Response at 4. His sentence, however, was

within the statutory maximum, of which he was informed. Also, the Plea

Agreement informed him that the district court would consider the G uidelines,

that any sentence would be determined by the district court, that any estimate of a

likely sentence was merely a prediction and not a promise, that he could not

withdraw his guilty plea if the court imposed any sentence up to the statutory

maximum, and that the district court would be the sole decider of his sentence.

Plea Agreement at 10, 12, 13. M r. Arrazola-Carreno therefore has failed to show




                                          -5-
any error affecting the fairness, integrity, or public reputation of his judicial

proceedings. See Hahn, 359 F.3d at 1327.

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

agreement and DISM ISS the appeal. The mandate shall issue forthwith.



                                         ENTERED FOR THE COURT
                                         PER CURIAM




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