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

                               FOR THE TENTH CIRCUIT                     July 18, 2016

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

       Plaintiff - Appellee,

v.                                                        No. 15-1323
                                                (D.C. No. 1:14-CR-00160-PAB-2)
KARLIEN RICHEL WINBERG,                                     (D. Colo.)

       Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before BRISCOE, LUCERO, and MORITZ, Circuit Judges.


      Karlien Richel Winberg was charged with conspiracy to commit wire fraud in

violation of 18 U.S.C. § 1349. She entered into a plea agreement that included a

waiver of her right to appeal. Following the district court’s acceptance of the plea

agreement, she pleaded guilty and was sentenced to 87 months’ imprisonment.

Despite her waiver, Ms. Winberg filed an appeal. The government now moves to




*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
enforce the appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328

(10th Cir. 2004) (en banc) (per curiam).

      In evaluating a motion to enforce a 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 [her] appellate rights; and (3)

whether enforcing the waiver would result in a miscarriage of justice.” Id. at 1325.

Ms. Winberg’s appointed counsel filed a response to the government’s motion

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that “[t]here is no

argument available that one of the three exceptions to the appeal waiver occurred”

and “[t]here is no argument available that the sentence imposed was procedurally or

substantively unreasonable.” Aplt. Resp. at 3. In light of counsel’s Anders response,

Ms. Winberg was permitted to file a pro se response, which focuses on her inability

to challenge the effective assistance of her counsel if the waiver is enforced.

      Our independent review confirms that Ms. Winberg’s plea agreement is

enforceable. The plea agreement contains three exceptions to the appeal waiver,

none of which apply under the circumstances: she did not receive a sentence

exceeding the statutory maximum penalty; the district court did not depart or vary

upwardly from the applicable sentencing guideline range; and the court did not

determine and impose a sentence based on an offense level greater than 28. The plea

agreement clearly sets forth the waiver, stating that it was knowing and voluntary; the

district court confirmed Ms. Winberg’s understanding of her appeal waiver during


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her change of plea hearing; and we see no evidence contradicting Ms. Winberg’s

knowing and voluntary acceptance of the appeal waiver. Finally, there is no

indication that enforcing the waiver would result in a miscarriage of justice as

defined in Hahn, 359 F.3d at 1327.

      Ms. Winberg’s pro se response focuses on challenging the fact that the appeal

waiver prevents her from bringing a claim of ineffective assistance of counsel on

direct appeal. This issue is within the scope of the waiver. We note, however, that

challenges to effective assistance of counsel “should be brought in collateral

proceedings, not on direct appeal.” United States v. Holloway, No. 14-4164, __ F.3d

__, 2016 WL 3397482, at *3 (10th Cir. June 20, 2016) (quoting United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc)). Though Ms. Winberg’s

plea agreement also contains a waiver of collateral review, the collateral-review

waiver makes an exception for a claim of ineffective assistance of counsel raised on

collateral review. Mot. to Enforce, Attach. 1 at 3. In other words, the plea

agreement does not preclude Ms. Winberg from challenging the effective assistance

of counsel on collateral review.

      The motion to enforce the plea agreement is granted, and the appeal is

dismissed. Ms. Winberg’s April 1 motion to appoint a new attorney is denied. The

May 24 motion to amend the pro se response is granted, but the remainder of the




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relief requested in that motion—to appoint an attorney and dismiss the government’s

motion—is denied. Finally, counsel’s motion to withdraw is granted.


                                             Entered for the Court
                                             Per Curiam




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