                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 7, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 09-5058
                                              (D.C. No. 4:08-CR-00051-CVE-5)
    FRANCISCA BONILLA-HOLGUIN,                           (N.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, EBEL, and GORSUCH, Circuit Judges.



         Francisca Bonilla-Holguin pleaded guilty to maintaining drug-involved

premises in violation of 21 U.S.C. § 856(a)(1) and to illegal reentry after

deportation in violation of 8 U.S.C. § 1326. The district court sentenced her to

sixty-three and twenty-four months’ imprisonment respectively, with the

sentences to run concurrently. By plea agreement, Ms. Bonilla-Holguin waived



*
      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 This order and judgment is not binding precedent, except under the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.
her right to appeal her conviction or sentence unless her sentence exceeded the

statutory maximum, which was twenty years’ imprisonment for the premises

offense and two years’ imprisonment for the reentry offense. Notwithstanding the

appeal waiver, Ms. Bonilla-Holguin filed a notice of appeal.

      The government has moved to enforce the appeal waiver under United

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

response, Ms. Bonilla-Holguin’s counsel filed a motion to withdraw and an

Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967) (authorizing

counsel to request permission to withdraw where counsel conscientiously

examines case and determines that appeal would be wholly frivolous). Counsel

states that the only arguable nonfrivolous issue presented in the record is

ineffective assistance of trial counsel in negotiating the appeal waiver, but that

argument should be raised in a collateral proceeding under 28 U.S.C. § 2255,

rather than on direct appeal, since the district court has not had an opportunity to

develop the factual record on the issue. See, e.g., United States v.

Ibarra-Coronel, 517 F.3d 1218, 1222 (10th Cir. 2008) (recognizing claim of

ineffective assistance of trial counsel usually must be raised in collateral

proceeding). We gave Ms. Bonilla-Holguin an opportunity to file a pro se

response to the motion to enforce. See Anders, 386 U.S. at 744. To date, she has

not done so.




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      Nonetheless, under Anders, we have conducted an independent review of

the plea agreement, change of plea hearing transcript, sentencing hearing

transcript, and motion to enforce. See id. After doing so, we conclude that the

requirements for enforcing the plea waiver at this time have been satisfied:

(1) this “appeal falls within the scope of the waiver of appellate rights;”

(2) Ms. Bonilla-Holguin “knowingly and voluntarily waived [her] appellate

rights;” and (3) “enforcing the waiver would [not] result in a miscarriage of

justice.” Hahn, 359 F.3d at 1325. As her counsel states, Ms. Bonilla-Holguin

may properly bring an ineffective assistance of counsel claim concerning the

negotiation of her appeal waiver in a collateral proceeding.

      We GRANT the government’s motion to enforce the plea agreement,

GRANT counsel’s motion to withdraw, and DISMISS the appeal.



                                        ENTERED FOR THE COURT
                                        PER CURIAM




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