                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 28, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                           FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 07-4270
                                               (D.C. No. 2:06-CR-00680-DB-2)
    JOSE CALDERON, also known as                          (D. Utah)
    Maestro Calderon and Enrique
    Calderon,

                Defendant-Appellant.



                            ORDER AND JUDGMENT *


Before BRISCOE, EBEL, and LUCERO, Circuit Judges.



         The government moves to enforce the plea agreement it entered into with

Jose Calderon. Mr. Calderon admits that he “can set forth no legal grounds to

oppose the motion to enforce the plea agreement.” Response to Mot. to Enforce

Plea Agreement at 4. He therefore concedes the motion. After independently


*
      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 This order and judgment is not binding precedent, except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
applying the three-pronged analysis set forth in United States v. Hahn, 359 F.3d

1315, 1325 (10th Cir. 2004), we conclude that the government’s motion to

enforce should be granted.

      Mr. Calderon asks that if the motion to enforce is granted he be allowed to

raise a claim of ineffective assistance of counsel in negotiating the plea in an

appropriate proceeding. Typically, such claims should be brought in a motion to

vacate, set aside, or correct sentence under 28 U.S.C. § 2255. See United States

v. Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005). Although, in his plea

agreement, Mr. Calderon waived the right to challenge his sentence in a § 2255

proceeding, a claim of ineffective assistance of counsel concerning the

negotiation of a plea agreement cannot be barred by the agreement’s appeal

waiver provision. See United States v. Cockerham, 237 F.3d 1179, 1184

(10th Cir. 2001). Accordingly, our dismissal of this appeal is without prejudice

to Mr. Calderon’s pursuing a claim of ineffective assistance of counsel in a

§ 2255 proceeding.

      The government’s motion to enforce the plea agreement is GRANTED, and

the appeal is DISMISSED. The mandate shall issue forthwith.



                                        ENTERED FOR THE COURT
                                        PER CURIAM




                                          -2-
