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

                           FOR THE TENTH CIRCUIT                          May 6, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                        No. 15-3053
                                                (D.C. No. 5:13-CR-40063-JAR-1)
JAMIE A. SIGMAN,                                            (D. Kan.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, HOLMES, and McHUGH, Circuit Judges.


      Jamie A. Sigman pleaded guilty, pursuant to a plea agreement, to being a felon

in possession of a firearm in violation of 18 U.S.C. § 922(g). The district court

sentenced him to seventy-six months in prison, the middle of the guidelines range.

Although the plea agreement contained an appellate waiver, Mr. Sigman filed a

notice of appeal.




*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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 United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc)

(per curiam), the government has moved to enforce the waiver. Mr. Sigman’s

counsel responded that any arguments opposing the government’s motion would be

frivolous. We gave Mr. Sigman an opportunity to file a pro se response arguing why

this appeal should be heard despite his appeal waiver. In his response, Mr. Sigman

argues that it would be a miscarriage of justice to enforce the appeal waiver because

(1) his counsel was ineffective and (2) the appeal waiver is otherwise unlawful

because his sentence was not properly calculated under the guidelines. We grant the

motion to enforce and dismiss this appeal.

       In Hahn, 359 F.3d at 1325, we established a three-prong test for determining

whether to enforce an appeal waiver: “(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.” A miscarriage of justice results if (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 waiver is otherwise

unlawful.” Id. at 1327 (internal quotation marks omitted). A waiver is “otherwise

unlawful” when it “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” Id. (quoting United States v. Olano, 507 U.S. 725, 732

(1993)).


                                           -2-
      Assuming Mr. Sigman is alleging ineffective assistance of counsel concerning

the negotiation of a plea agreement, his claim cannot be barred by the appeal waiver.

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

ineffective-assistance claim should be raised in a collateral proceeding under

28 U.S.C. § 2255. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.

1995) (en banc); see also Hahn, 359 F.3d at 1327 n.13 (stating that holding “does not

disturb [the] longstanding rule” of generally considering ineffective-assistance claims

on collateral review). We therefore do not address an ineffective-assistance claim in

this proceeding.

      Mr. Sigman also alleges sentencing error due to an improper guidelines

calculation. We have repeatedly held that alleged sentencing errors do not establish

that enforcement of the appeal waiver would be unlawful under the miscarriage-of-

justice inquiry. See United States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir. 2007)

(“Our inquiry is not whether the sentence is unlawful, but whether the waiver itself is

unlawful . . . .”). Mr. Sigman’s argument suffers from “the logical failing[] of

focusing on the result of [the] proceeding, rather than on the right relinquished, in

analyzing whether an appeal waiver is [valid].” Hahn, 359 F.3d at 1326 n.12.

      Accordingly, we grant the government’s motion to enforce, and we dismiss

this appeal, without prejudice to Mr. Sigman raising a claim of ineffective assistance




                                          -3-
of counsel in a collateral proceeding. Mr. Sigman’s pro se request for “competent

counsel” is denied. See Pro se Resp. at 3.


                                               Entered for the Court
                                               Per Curiam




                                         -4-
