                                                                          F IL E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                        October 27, 2006
                            FO R T H E T E N T H C IR C U IT
                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                     No. 06-2063
                                                    (D.C. No. CR-05-2314-JB )
    M ARIO CO RD OVA-CA ZA RES,                             ( D. N.M .)
    also known as M ario Guillermo
    Cordova,

                Defendant-Appellant.



                            O R D E R A N D JU D G M E N T *


Before K E L L Y , H A R T Z, and O ’B R IE N , Circuit Judges.




         Defendant M ario Cordova-Cazares, proceeding pro se, filed a notice of

appeal from his conviction on one count of being an illegal alien who returned to

the United States subsequent to having been convicted of a felony in violation of

8 U.S.C. §§ 1326(a)(1), (a)(2) and 8 U.S.C. § 1326(b)(2). The government has


*
      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 This order and judgment is not binding precedent, except under the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.
filed a motion to enforce M r. Cordova-Cazares’ plea agreement which includes an

appellate waiver. W e grant the motion and dismiss the appeal.

       In his plea agreement, M r. Cordova-Cazares stated that he “knowingly

waives the right to appeal any sentence within the statutory range applicable to

the statute(s) of conviction . . . [and] any collateral attack to the . . . conviction

pursuant to 28 U.S.C. § 2255, except on the issue of ineffective assistance of

counsel.” M ot. to Enforce, Plea A greement, Ex. A at 5, para. 10. The statutory

maximum for the offense of conviction was twenty years, and the government

stipulated in the plea agreement that M r. Cordova-Cazares’ final adjusted offense

level under the sentencing guidelines would be nineteen. M r. Cordova-Cazares

was sentenced to forty-six months’ imprisonment, which w as w ithin the statutory

maximum for the offense of conviction and complied with the stipulation in the

plea agreement.

       This court will enforce a criminal defendant’s waiver of his right to appeal

so long as the following three elements are satisfied: (1) “the disputed appeal

falls within the scope of the w aiver of appellate rights,” (2) the defendant’s

waiver of his appellate rights was knowing and voluntary, and (3) enforcing the

waiver w ill not result in a miscarriage of justice. United States v. Hahn, 359 F.3d

1315, 1325 (10th Cir. 2004) (en banc) (per curiam). M r. Cordova-Cazares’




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attorney has filed a response stating that he can find no basis for an appeal of the

sentence imposed, and he has moved to withdraw as counsel of record.




      M r. Cordova-Cazares objects to his attorney’s position and has filed a

response to the motion to enforce arguing that enforcing the appellate waiver in

his plea agreement would result in a miscarriage of justice because he received

ineffective assistance of counsel. M r. Cordova-Cazares does not contest that he

knowingly and voluntarily entered into the plea agreement, that the sentence was

within the statutory maximum for the offense of conviction and was not imposed

in violation of the law . He opposes the motion to enforce based only on the third

Hahn factor, miscarriage of justice. Therefore, we do not address the first two

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

(declining to address Hahn factor not contested by defendant), cert. denied,

126 S. Ct. 550 (2005). 1

      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




1
      Nevertheless, it is clear that this appeal falls within the scope of the waiver
of appellate rights and that defendant’s waiver of his appellate rights was
knowing and voluntary.

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       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).

M r. Cordova-Cazares contends that he received ineffective assistance of counsel

in connection with the negotiation of the waiver. He claims that his counsel

showed him the proposed plea agreement for only a few minutes during a prison

visit and failed to send him a copy of the agreement to review before the plea

hearing, as he had requested. He states that, at the conclusion of his pre-sentence

investigation review with the United States Probation Department, his attorney

informed him that he would not be sentenced to more than thirty-seven months’

imprisonment. He alleges that his attorney did not give him a chance to review

the pre-sentence report (PSR), and refused to give him any documents from his

case file.

       During M r. Cordova-Cazares’ plea hearing, however, he informed the court

that he had had enough time to read and review the plea agreement in Spanish

with his attorney before signing it, that no one coerced him to plead guilty, that

no promises were made to him other than those in the plea agreement, that he was

voluntarily pleading guilty because he was guilty, and that he understood the

rights he was waiving as a result of his plea, including his appeal waiver. Plea

H’rg Tr., Oct. 31, 2005, at 5-7. M oreover, he also told the court specifically that

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he understood and had discussed with his attorney the fact that the maximum

period of imprisonment could be as much as twenty years. Id. at 6. Also, the plea

agreement states that defendant was freely and voluntarily entering into the

agreement and was not doing so as a result of promises apart from those set forth

in the agreement. Plea Agreement at 6, para. 13.

      Furthermore, at the sentencing hearing, M r. Cordova-Cazares informed the

court that he had reviewed the PSR and that there was not anything in it that he

still w ished to review with his counsel. Sentencing H’rg Tr., Feb. 23, 2006, at 4.

His counsel informed the court that he had reviewed the PSR with defendant and,

in response to questions M r. Cordova-Cazares had about his criminal history, had

obtained records from the probation officer and had them forwarded to the

defendant, and that there were no further issues in dispute or objections to the

PSR. Id. at 4. M r. Cordova-Cazares did tell the sentencing court that he thought

his sentence would be thirty-six months. His counsel explained to the court that

he had done his best to answer M r. Cordova-Cazares’ questions and that he had

sent defendant the records demonstrating the accuracy of the criminal history

reflected in the PSR. Id. at 8-9. M r. Cordova-Cazares initially told the

sentencing court that the appeal waiver confused him, and that he thought he

made a deal to be sentenced to thirty-six months, but after an off-the-record




                                         -5-
conference with his attorney, he informed the court that he did understand the

appeal w aiver in his plea agreement. Id. at 12-14.

      Thus, the plea agreement made clear that M r. Cordova-Cazares faced a

possible maximum sentence of twenty years’ imprisonment and that he was giving

up his constitutional and appellate rights. The sentence complied with the terms

of the plea agreement and with M r. Cordova-Cazares’ understanding of the plea.

Additionally, M r. Cordova-Cazares represented at the plea and sentencing

hearings that he had reviewed the plea agreement and the PSR with counsel and

he had an opportunity to speak at both hearings, but he made no mention of his

present allegations. W e therefore conclude, based upon our review of the record,

including the transcripts of the plea and sentencing hearings, that

M r. Cordova-Cazares has not met his burden of showing ineffective assistance of

counsel in connection with the negotiation of the waiver or otherwise

demonstrating that the waiver is invalid. See United States v. Olano, 507 U.S.

725, 732 (1993); Hahn, 359 F.3d at 1327. M oreover, not only is

M r. Cordova-Cazares’ objection about trial counsel’s performance insufficient to

demonstrate a miscarriage of justice in general, to the extent that his objection

survives his plea agreement waiver at all, it would not be a basis for an appeal,

but rather 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)



                                         -6-
(holding that ineffective assistance of counsel claims should be brought in

collateral proceedings, not on direct appeal); see also Plea Agreement at 5,

para. 10 (stating that “defendant agrees to waive any collateral attack to the

defendant’s conviction pursuant to 28 U.S.C. § 2255, except on the issue of

ineffective assistance of counsel.”).

      W e GRANT the government’s motion to enforce the plea agreement and

DISM ISS the appeal. In light of our decision, we DENY M r. Cordova-Cazares’

request for appointment of counsel as moot, and we G RANT attorney Gleria’s

motion to withdraw as counsel for M r. Cordova-Cazares. The mandate shall issue

forthwith.

                                        ENTERED FOR THE COURT
                                        PER CURIAM




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