                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                              August 4, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 20-1042
                                                  (D.C. No. 1:16-CR-00301-WJM-1)
 WILLIAM J. SEARS,                                            (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before BRISCOE, KELLY, and HOLMES, Circuit Judges.
                   _________________________________

      The government has moved to dismiss defendant William J. Sears’s appeal

because it falls within the scope of the appeal waiver contained in his Plea

Agreement. We grant the motion and dismiss the appeal.

      Sears pleaded guilty to conspiracy to defraud the United States and to commit

offenses against the United States, in violation of 18 U.S.C. § 371, and filing a false

income tax return, in violation of 26 U.S.C. § 7206(1). The district court sentenced

him to 96 months in prison. This was the statutory maximum sentence that could be

imposed for both offenses when run consecutively.



      *
         This order and judgment is not binding precedent, except under the doctrines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.
       In his Plea Agreement, Sears “knowingly and voluntarily waive[d] [his] right

to appeal any matter in connection with [his] prosecution, conviction, or sentence

unless the sentence exceeds 96 months.” Mot., Attach. 1 at 9. He further waived his

right to collaterally attack his “prosecution, conviction, or sentence and/or the

manner in which it was determined . . . including [through] a motion brought under

28 U.S.C. § 2255, except . . . [for] relief otherwise available if: (1) there is an

explicitly retroactive change in the applicable guidelines or sentencing statute,

(2) there is a claim that he was denied the effective assistance of counsel, or (3) there

is a claim of prosecutorial misconduct.” Id. at 9-10.

       The government has filed a motion to enforce the appeal waiver under United

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

evaluating a motion to enforce, this court considers “(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. Sears argues the waiver

should not be enforced because this appeal falls outside its scope and because

enforcing the waiver would result in a miscarriage of justice. Because he does not

assert that his waiver was not knowing and voluntary, we need not address that

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

       Sears contends this appeal falls outside the scope of the waiver because it is

within the stated exceptions for ineffective assistance of counsel and prosecutorial

misconduct. The government correctly points out that these exceptions do not apply

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to the waiver of Sears’s right to appeal his “prosecution, conviction, or sentence,”

which permits him to appeal only if the sentence exceeded 96 months (which it did

not), Mot., Attach. 1 at 9. Instead, the exceptions Sears cites relate to the separate

waiver of collateral review.

      Sears contends that this appeal falls within these exceptions because “[h]e is

seeking relief ‘otherwise available’ by means of a direct appeal of his motion to

withdraw his guilty plea.” Resp. at 4. We disagree. By appealing the denial of his

motion to withdraw his plea, Sears does not seek collateral review, but instead seeks

to appeal a “matter in connection with [his] prosecution, conviction, or sentence,”

Mot., Attach. 1 at 9. See United States v. Leon, 476 F.3d 829, 832 (10th Cir. 2007)

(per curiam) (“Case law makes clear that an appeal of a denial of a motion to

withdraw a guilty plea is an attempt to contest a conviction on appeal and thus falls

within the plain language of an appeal waiver provision.” (brackets and internal

quotation marks omitted)). Thus, the appeal falls within the scope of the waiver, and

his challenge based on the first Hahn factor fails.

      Sears also contends that enforcing the waiver would result in a miscarriage of

justice. A miscarriage of justice occurs if (1) the district court relied on an

impermissible factor, such as race; (2) the district court imposed a sentence that

exceeded the statutory maximum; (3) the waiver was the result of ineffective

assistance of counsel in its negotiation; or (4) the waiver was otherwise unlawful.

See United States v. Salas-Garcia, 698 F.3d 1242, 1255 (10th Cir. 2012). Sears

relies on the third factor, arguing that his initial defense counsel was ineffective

                                            3
because he “failed to conduct an adequate investigation before advising Mr. Sears to

engage in plea negotiations and to agree to the plea agreement,” Resp. at 5, and on

the fourth factor, arguing that the waiver is “otherwise unlawful” because the

“prosecution was filled with Brady/Giglio violations,” id. at 6.

      Sears’s argument concerning counsel’s alleged ineffectiveness cannot be

raised on direct appeal. In Hahn, we explained that “[g]enerally, we only consider

ineffective assistance of counsel claims on collateral review.” 359 F.3d at 1327 n.13.

And we expressly stated that Hahn’s miscarriage-of-justice holding “does not disturb

this longstanding rule.” Id. We later reiterated that “[t]his rule applies even where a

defendant seeks to invalidate an appellate waiver based on ineffective assistance of

counsel.” Porter, 405 F.3d at 1144. Thus, Sears’s argument does not prevent the

waiver from being enforced at this stage of the proceedings. 1 Sears’s assertions that



      1
         The government argues that this appeal falls within an exception to the
general principle, because the ineffective-assistance issue was “raised and ruled upon
by the district court, and the record is sufficiently developed for review at this
juncture.” Reply at 5. It thus urges us to resolve this issue on the merits and to
conclude there was no miscarriage of justice. See id. at 6-15. But we decline to do
so. A motion to enforce a plea agreement seeking dismissal of a direct appeal is not
the proper proceeding in which to perform a deep dive into issues of counsel’s
ineffectiveness. See United States v. Tanner, 721 F.3d 1231, 1234 (10th Cir. 2013)
(per curiam) (“Motions to enforce should be, as our rules suggest, . . . narrow,
focused and often summary.”); see also generally Hahn, 359 F.3d at 1328 (stating the
government’s motion should “address the three-prong enforcement analysis . . ., but
not the underlying merits of the defendant’s appeal”); 10th Cir. R. 27.3 (classifying
motion to enforce as motion seeking “[s]ummary disposition” of an appeal).
Although an ineffective-assistance claim may be resolved as part of the merits
consideration of an appeal in rare cases when the issue was both “raised before and
ruled upon by the district court and a sufficient factual record exists,” United States
v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011), such a resolution will almost never
                                           4
his counsel was ineffective in connection with the appeal waiver must be adjudicated,

if at all, on collateral review.

       Sears also argues that the waiver is “otherwise unlawful.” Resp. at 6. “To be

otherwise unlawful, an error must seriously affect the fairness, integrity or public

reputation of judicial proceedings.” United States v. Smith, 500 F.3d 1206, 1212

(10th Cir. 2007) (brackets and internal quotation marks omitted). Moreover, “[t]his

exception looks to whether the waiver is otherwise unlawful, . . . not to whether

another aspect of the proceeding may have involved legal error.” Id. at 1213

(internal quotation marks omitted).

       In support of his “otherwise unlawful” argument, Sears makes essentially the

same arguments he made to the district court in seeking to withdraw his guilty plea:

that the government improperly withheld information that the prosecutor had a

conflict of interest with a government witness, and that an FBI agent assigned to his

case failed to qualify as a securities fraud investigator under SEC criteria because she

was not entitled to use a C.P.A. designation. See Resp. at 6-7. He also complains

that the government adopted shifting legal theories during the prosecution. Although


be appropriate in connection with the limited proceedings involved in a motion to
enforce.

       Nor, in this case, do we find it appropriate to deny the government’s motion
without prejudice to permit the parties to litigate the ineffective-assistance issue
before a merits panel. Although the government cites a case where the merits panel
did adjudicate such an issue, see United States v. Rodriguez-Rivera, 518 F.3d 1208,
1216 (10th Cir. 2008), here we are not satisfied that the ineffective-assistance issue
was sufficiently raised and ruled upon by the district court or that the record was
sufficiently developed for review at this juncture.
                                           5
these arguments demonstrate that Sears has appellate issues to assert, he has provided

no persuasive reasons that enforcing the appeal waiver will result in a miscarriage of

justice.

       For the foregoing reasons, the government’s motion to dismiss is granted and

Sears’s appeal is dismissed. The government’s motion to seal the attachments to the

motion to enforce is granted.


                                           Entered for the Court
                                           Per Curiam




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