                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                    January 4, 2011
                            FOR THE TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                      Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff!Appellee,

    v.                                                    No. 10-2096
                                                (D.C. No. 1:08-CR-00057-LH-1)
    JABSIE DWAYNE LEWIS,                                   (D. N.M.)

                Defendant!Appellant.


                             ORDER AND JUDGMENT *


Before MURPHY, HARTZ, and TYMKOVICH, Circuit Judges.


         Pursuant to a plea agreement that contained an appeal waiver provision,

Jabsie Dwayne Lewis pleaded guilty to one count of possession with intent to

distribute more than five grams of a mixture and substance containing cocaine

base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Mr. Lewis also agreed

to admit to the charged civil forfeiture. The district court sentenced him to




*
      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 This order and judgment is not binding precedent, except under the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.
188 months’ imprisonment. Despite the appeal waiver, Mr. Lewis has filed an

appeal seeking to raise sentencing issues.

      The appeal waiver in Mr. Lewis’s plea agreement states that he:

      knowingly waives the right to appeal [his] conviction(s) and any
      sentence at or under the maximum statutory penalty authorized by
      law. In addition, [Mr. Lewis] agrees to waive any collateral attack to
      [his] conviction(s) pursuant to 28 U.S.C. § 2255, except on the issue
      of ineffective assistance of counsel.

Plea Agreement at 10. The government has moved to enforce the appeal waiver,

noting that the 188-month sentence imposed on Mr. Lewis was well below the

statutory maximum penalty of life imprisonment.

      In determining whether an appeal should be dismissed based on an appeal

waiver, we consider “(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.” United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir.

2004) (en banc) (per curiam). Mr. Lewis contends that the appeal waiver should

not be enforced because he received ineffective assistance of counsel in

connection with the negotiation of the appeal waiver and the government breached

the plea agreement at sentencing.

      Ineffective Assistance of Counsel. Mr. Lewis contends that his counsel

misled him into believing that if he entered into the plea agreement, the

government would file a motion asking for leniency at sentencing based on


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Mr. Lewis’s cooperation. He contends that no such motion was ever filed, and his

counsel was ineffective for failing to understand the terms of the cooperation

agreement and to ensure that it was included in the plea agreement. Ineffective

assistance of counsel in connection with the negotiation of an appeal waiver can

result in a miscarriage of justice. See Hahn, 359 F.3d at 1327. This claim

generally is not properly brought on direct appeal, however, because an ineffective

assistance of counsel claim must ordinarily be raised in a 28 U.S.C § 2255

proceeding. See United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005).

Mr. Lewis acknowledges this rule, but contends it does not apply in the context of

appeal waivers. This is incorrect; we have held that this rule applies even where a

defendant seeks to invalidate an appellate waiver based on ineffective assistance

of counsel. Id. Mr. Lewis’s appeal waiver expressly recognizes his right to bring

such an ineffective assistance of counsel claim in a § 2255 motion. Plea

Agreement at 10. Because these allegations fall outside the narrow circumstances

in which we address claims of ineffective assistance of counsel on direct appeal,

we decline to address this issue, without prejudice to Mr. Lewis’s right to raise his

ineffective assistance of counsel claims in a § 2255 motion.

      Breach of Plea Agreement. Mr. Lewis contends that the appeal waiver is

the product of an agreement that the government breached. Mr. Lewis contends

that Drug Enforcement Agency (DEA) investigators verbally told him in the

presence of the prosecutor that if he provided certain cooperation, the government


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would make his cooperation known to the judge at sentencing. He further

contends that he provided the requested cooperation and entered into his plea

agreement based on his belief that he had provided the requested cooperation, and

that he continued to cooperate after he entered his guilty plea. The government

then told him, however, that his cooperation was no longer needed and it never

filed a motion recommending a sentence reduction based on his cooperation.

Mr. Lewis’s breach-of-plea-agreement argument is based on an affidavit executed

by his original trial counsel on April 2, 2010, two weeks before sentencing, yet

this breach-of-plea agreement claim was not raised by Mr. Lewis’s new counsel at

sentencing on April 23, 2010.

      “[A]n appellate waiver is not enforceable if the Government breaches its

obligations under the plea agreement.” United States v. Rodriguez-Rivera,

518 F.3d 1208, 1212 (10th Cir. 2008). “General principles of contract law define

the content and scope of the government’s obligations under a plea agreement.”

United States v. VanDam, 493 F.3d 1194, 1199 (10th Cir. 2007). “We thus look to

the express language in the agreement to identify both the nature of the

government’s promise and the defendant’s reasonable understanding of this

promise at the time of the entry of the guilty plea.” Id. “We evaluate the record

as a whole to ascertain whether the government complied with its promise.” Id.

Because Mr. Lewis did not raise this argument in the district court, our review is




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for plain error. See Puckett v. United States, 129 S. Ct. 1423, 1428 (2009); United

States v. Bullcoming, 579 F.3d 1200, 1205 (10th Cir. 2009).

      The plea agreement does not contain any promise by the government to file

a motion requesting a downward departure for Mr. Lewis’s substantial assistance.

At the plea hearing, Mr. Lewis testified that he had read the entire plea agreement

before he signed it, that he understood it, and that it represented the entire

agreement that he had with the United States concerning his case. Tr. Plea Hr’g at

8-9. The trial court specifically asked Mr. Lewis “[h]as anyone made any other

promises to you or given you any other assurances concerning what would occur

that are not included in this plea agreement?” and Mr. Lewis affirmatively stated,

“No.” Id. at 9. Mr. Lewis further testified he had not been threatened or forced to

plead guilty and was doing so of his own free will. Id. at 10. He testified that he

understood the sentence imposed by the court could differ from any good faith

estimate his counsel may have given him, and that he could not withdraw his plea

even if the sentence imposed was greater than his expectation. Id. at 9, 11. He

also testified that he understood he was waiving his right to appeal his conviction

and any sentence below the statutory maximum penalty. Id. at 13.

      Based on our review of the plea agreement and the record as a whole, we

conclude that the government did not breach the plea agreement. Because

Mr. Lewis makes no other arguments challenging the validity of the appellate




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waiver, the government’s motion to enforce the appeal waiver is GRANTED and

this appeal is DISMISSED.


                                    ENTERED FOR THE COURT
                                    PER CURIAM




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