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

                             FOR THE TENTH CIRCUIT                         April 20, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                        No. 15-4140
                                                 (D.C. No. 2:14-CR-00636-TS-1)
BRENTON R. ANDREWS,                                         (D. Utah)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, MATHESON, and McHUGH, Circuit Judges.
                 _________________________________

      Brenton R. Andrews was charged with one count of producing child

pornography, for which the statutory minimum sentence was 15 years and the

statutory maximum was 30 years. He entered into a plea agreement under Fed. R.

Crim. P. 11(c)(1)(C) in which he agreed to plead guilty to the charge and to receive a

stipulated sentence of 300 months (25 years).1 After reviewing the presentence


      *
         This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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.
       1
         At sentencing, the government noted that Andrews had not merely produced
child pornography but had sexually abused a minor on several occasions. The plea to
a stipulated sentence of 300 months allowed Andrews to avoid prosecution for that
abuse by state and federal authorities.
report and determining that the guidelines range would be 262-327 months, the

district court concluded that a sentence of 300 months was reasonable. It therefore

accepted Andrews’ plea and sentenced him to a term of 300 months in prison.

       As part of his plea agreement, Andrews waived his right to appeal unless the

punishment imposed was greater than the parties had agreed.2 Despite this waiver

and the imposition of the agreed sentence, Andrews brought this appeal claiming that

the district court failed to consider all the relevant factors in sentencing him, the

presentence report contained several errors, and his counsel was ineffective for not

bringing these matters to the court’s attention. The government has moved to enforce

the appeal waiver, in accordance with United States v. Hahn, 359 F.3d 1315, 1328

(10th Cir. 2004) (en banc) (per curiam). We grant the government’s motion and

dismiss the appeal.

       “This court will hold a defendant to the terms of a lawful plea agreement.”

United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1998). We will enforce

an appeal waiver in a plea agreement as long as three elements are met: (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.” Hahn, 359 F.3d at 1325.

       Andrews’ counsel filed a response to the government’s motion in which he

conceded that the appeal waiver in the plea agreement “acts as a waiver of


       2
         Andrews also agreed to waive his right to bring a collateral attack, except on
the issue of ineffective assistance of counsel.
                                            2
Appellant’s right to appeal in almost all circumstances,” but argued that the

government’s motion should be denied and the appeal should proceed (with new

counsel) because Andrews was claiming that his trial counsel was ineffective.

Aplt.’s Resp. at 1-2. Andrews himself filed a pro se response to the government’s

motion. He contended that he did not agree with the plea agreement and did not want

to sign it because he had “so many questions and concerns.” Pro Se Resp. at 1. He

also stated that he was “coerced into signing things [he] didn’t understand” and that

he wished he had “felt safe enough” to address the district court in person at his

sentencing, but he “was told [he] couldn’t argue anything at all.” Id. at 2. Finally, he

maintained that he did not have sufficient time to review the presentence report and

did not have an opportunity to correct several errors in it.

       Andrews’ proposed attacks on his sentence clearly fall within the scope of his

appeal waiver, which permitted an appeal only if he received a sentence above the

agreed 300 months. But his statements that he did not agree with the plea agreement

and was coerced into signing it raise the question whether he waived his right to

appeal knowingly and voluntarily. “We only enforce appeal waivers that defendants

enter into knowingly and voluntarily.” Hahn, 359 F.3d at 1328-29. “Nevertheless, it

is the defendant who bears the burden of demonstrating his waiver was not knowing

and voluntary.” United States v. White, 584 F.3d 935, 948 (10th Cir. 2009) (brackets

omitted) (internal quotation marks omitted); see also United States v. Edgar, 348 F.3d

867, 872-73 (10th Cir. 2003) (defendant “has the burden to present evidence from the

record establishing that he did not understand the waiver”).

                                            3
         In determining whether a defendant waived his appellate rights knowingly and

voluntarily, “we especially look to two factors.” Hahn, 359 F.3d at 1325. The first

factor is “whether the language of the plea agreement states that the defendant

entered the agreement knowingly and voluntarily” and the second is whether there

was “an adequate Federal Rule of Criminal Procedure 11 colloquy.” Id. “[E]ither

the express language of the plea agreement, if sufficiently clear, detailed, and

comprehensive, or the probing inquiry of a proper Rule 11 colloquy could be enough

to conclude the waiver was knowing and voluntary. But the synergistic effect of both

will often be conclusive.” United States v. Tanner, 721 F.3d 1231, 1234 (10th Cir.

2013).

         The plea agreement Andrews signed contained several statements by him

expressly acknowledging that he knowingly and voluntarily entered the plea

agreement and, more specifically, waived his right to appeal anything other than a

sentence greater than the agreed 300 months. During the Rule 11 colloquy at the

change of plea hearing, Andrews stated under oath that he had read every sentence of

the plea agreement, that he had had sufficient time to review it with his attorney, that

no one had threatened or coerced him into pleading guilty, and that he understood he

was waiving his right to appeal his conviction or sentence except as stated in the plea

agreement. “Solemn declarations in open court carry a strong presumption of

verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). The record before us

demonstrates that Andrews waived his right to appeal knowingly and voluntarily. To

the extent he is unhappy with his counsel’s representation during the plea process,

                                           4
Andrews will have to await a subsequent proceeding under 28 U.S.C. § 2255 to raise

any claim of ineffective assistance of counsel.

       Having determined that the appeal is within the scope of the waiver and that

the waiver was knowing and voluntary, we have to consider only whether enforcing

the appeal waiver would result in a miscarriage of justice. We have recognized only

four situations that give rise to a miscarriage of justice: “[1] where the district court

relied on an impermissible factor such as race, [2] where ineffective assistance of

counsel in connection with the negotiation of the waiver renders the waiver invalid,

[3] where the sentence exceeds the statutory maximum, or [4] where the waiver is

otherwise unlawful.” Hahn, 359 F.3d at 1327.

       In his docketing statement Andrews indicated that he intended to bring a claim

for ineffective assistance of counsel based on his trial counsel’s failure to draw the

district court’s attention to errors in the presentence report or to ensure that the court

considered all the proper sentencing factors. But for a claim of ineffective assistance

to invalidate the waiver, it must relate to the negotiation of the waiver itself. See id.

Andrews’ proposed ineffective assistance claim does not. Moreover, even if he were

to claim that his counsel provided ineffective assistance in negotiating the waiver (or

the plea agreement in general), Andrews would have to raise the claim in a

subsequent collateral proceeding, not on direct appeal, see United States v. Porter,

405 F.3d 1136, 1144 (10th Cir. 2005). “This rule applies even where a defendant

seeks to invalidate an appellate waiver based on ineffective assistance of counsel.”



                                             5
Id. Neither Andrews nor his counsel has suggested any other basis for withholding

enforcement of the waiver.

      Accordingly, the government’s Motion to Enforce Plea Agreement and

Dismiss Appeal is granted, and the appeal is dismissed. Andrews’ motion for

appointment of new counsel is denied as moot.


                                         Entered for the Court
                                         Per Curiam




                                         6
