                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 31, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 10-3250
                                               (D.C. No. 2:08-CR-20150-CM-2)
    DEBORAH JACKSON,                                       (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL, and KELLY, Circuit Judges.



         This matter is before the court on the government’s motion to enforce the

appeal waiver contained in defendant Deborah Jackson’s plea agreement.

Ms. Jackson pleaded guilty to conspiracy to distribute methamphetamine and

using and possessing a firearm during and in furtherance of a drug trafficking

crime. Based on Ms. Jackson’s two prior felony convictions for drug offenses,



*
      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 This order and judgment is not binding precedent, except under the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.
the district court sentenced her to life imprisonment on the drug conviction, which

was the statutory minimum sentence, and sixty months’ imprisonment on the

firearms conviction, to be served consecutively. Despite her appeal waiver,

Ms. Jackson seeks to appeal the denial of her motion to withdraw her guilty plea

and her life sentence. We grant the government’s motion to enforce the appeal

waiver.

      The appellate waiver in Ms. Jackson’s plea agreement is extremely broad:

she agreed to waive her right “to appeal or collaterally attack any matter in

connection with [her] prosecution, [her] conviction, or the components of the

sentence to be imposed” so long as the sentence imposed was within the guideline

range determined appropriate by the court. Mot. to Enforce, Attach. 1, Plea

Agrmt., at A11. After entering her plea, but prior to sentencing, Ms. Jackson

obtained new counsel and moved to withdraw her guilty plea, claiming that the

decision to plead guilty was made by her prior counsel and that she did not

understand the consequences of her plea or how her sentence would be calculated.

The district court held an evidentiary hearing and denied the motion.

      In determining whether to dismiss an appeal based upon a waiver of

appellate rights, 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,

                                         -2-
1325 (10th Cir. 2004) (en banc) (per curiam). Ms. Jackson asserts that her waiver

was not knowing and voluntary and enforcing it would result in a miscarriage of

justice. She does not claim that the appeal falls beyond the waiver’s scope. Her

attempt to appeal the district court’s denial of her motion to withdraw her plea

does fall within the scope of the waiver. See United States v. Leon, 476 F.3d 829,

832 (10th Cir. 2007) (“[A]n appeal of a denial of a motion to withdraw a guilty

plea is an attempt to contest a conviction on appeal and thus falls within the plain

language of an appeal waiver provision.” (quotation marks omitted) (original

alterations omitted)).

                              Knowing and Voluntary

      Ms. Jackson argues that the plea was not knowing and voluntary because

she lacked an adequate understanding of the waiver. She does not elaborate on

this argument, but merely refers generally to her testimony at the hearing on her

motion to withdraw her guilty plea. Resp. at 3-4.

      In evaluating whether an appellate waiver was knowing and voluntary,

“we examine whether the language of the plea agreement states that the defendant

entered the agreement knowingly and voluntarily” and “we look for an adequate

Federal Rule of Criminal Procedure 11 colloquy.” Hahn, 359 F.3d at 1325. It is

Ms. Jackson’s burden to present evidence establishing that she did not understand

the waiver. See id. at 1329; United States v. Edgar, 348 F.3d 867, 872-73

(10th Cir. 2003).

                                         -3-
      Both the plea agreement and the Rule 11 colloquy clearly set out the

knowing and voluntary nature of the plea agreement and appellate waiver. See

Plea Agrmt. at A11 (stating that Ms. Jackson knowingly and voluntarily agrees to

the appeal waiver); id. at A13-A14 (acknowledging that Ms. Jackson read the plea

agreement; discussed its terms with her attorney; understands the plea agreement

and agrees it is true and accurate; the agreement is not the result of any threats,

duress or coercion; and she is entering into the plea agreement because she is

guilty and is doing so freely and voluntarily); Mot. to Enforce, Attach. 2, Tr. of

Rule 11 Colloquy, at A28-A32 (summary of the plea agreement’s provisions and

Ms. Jackson’s confirmation that the summary is her understanding of the plea

agreement); id. at A23 (Ms. Jackson’s confirmation that she understands that her

term of imprisonment on her drug count is not less than life imprisonment

because of her two prior felony drug convictions); id. at A36 (Ms. Jackson’s

confirmation that she is entering the plea freely and voluntarily and of her own

free will, because she is in fact guilty of the charged offenses, and that her plea is

not forced, threatened or induced by any sort of promise to her); id. at A40 (Ms.

Jackson’s confirmation that the decision to enter her guilty plea is her decision,

not her attorney’s); id. at A33-A35 (court’s recitation of the appellate waiver

provision and Ms. Jackson’s confirmation that she reviewed the appellate waiver

provision with her attorney, understands it, has not been forced or threatened into

waiving her appellate rights, and is requesting the court to approve the waiver of

                                          -4-
her own free will); id. at A36-A37 (Ms. Jackson’s confirmation that she reviewed

the plea agreement with her counsel, who informed her of its provisions and the

consequences of signing it); id. at A40 (Ms. Jackson’s confirmation that she is

satisfied with the services of her attorney).

      In contrast to her statements under oath during the Rule 11 Colloquy,

Ms. Jackson stated at the hearing on her motion to withdraw her plea that she was

not guilty of the charged offenses and that she did not plead guilty because she

was guilty, but because she thought it would help in her son’s criminal case and

because she was told she would get a sentence of thirty years’ imprisonment, not

life, if she signed the plea agreement. Resp., Attach. Tr. of Mot. to Withdraw

Plea Hr’g, at 9-12, 15-16, 17. She further stated that she had not reviewed the

plea agreement with her attorney prior to signing it, the plea agreement was

confusing to her, and she had to look at her attorney during the Rule 11 Colloquy

in order to answer the court’s questions. Id. at 9, 17, 20-21. Ms. Jackson’s first

attorney testified, however, that he met with Ms. Jackson five times prior to her

guilty plea and that he reviewed and explained the plea agreement to her

paragraph-by-paragraph. Id. at 63, 68-69. He testified that he told Ms. Jackson

that the plea agreement was in her best interests because she would get a sentence

of life imprisonment by statute unless she cooperated, 1 but he did not tell

1
       In the plea agreement, the government agreed to recommend up to a
three-level reduction in the applicable offense level under U.S.S.G. § 3E1.1,
                                                                      (continued...)

                                          -5-
Ms. Jackson that her plea would help her son’s criminal case and never threatened

her. Id. at 72, 79-80. Further, he testified that Ms. Jackson did not look at him

for guidance in answering the court’s questions during the Rule 11 colloquy.

Id. at 70-71. In denying her motion to withdraw her plea, the district court found

that Ms. Jackson’s testimony that her attorney coerced her into entering into the

plea agreement and that her plea was not knowing and voluntary was not credible.

Id. at 124-28.

      We have reviewed the plea agreement, the Rule 11 colloquy, and the

testimony at the hearing held on her motion to withdraw her plea, and we

conclude that Ms. Jackson knowingly and voluntarily agreed to the appeal waiver

in her plea agreement.

                               Miscarriage of Justice

      Ms. Jackson contends that, consistent with her testimony at the hearing on

her motion to withdraw her plea, she received ineffective assistance of counsel.

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

1
 (...continued)
contingent on Ms. Jackson’s continuing manifestation of acceptance of
responsibility, and agreed to request the court to consider a further sentence
reduction if the government determined that she had provided substantial
assistance within the meaning of U.S.S.G. § 5K1.1. See Plea Agrmt. at A7, A9.
After a year of requesting and receiving extensions of her sentencing hearing,
Ms. Jackson moved to withdraw her plea and protested that she was actually
innocent. Accordingly, the government did not request any U.S.S.G. § 3E1.1 or
§ 5K1.1 sentence reductions.

                                         -6-
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). Ms. Jackson acknowledges this rule, and requests that any dismissal of her

appeal be without prejudice to asserting this claim in a § 2255 motion. Of course,

Ms. Jackson’s appeal waiver does not preclude her from bringing a § 2255 motion

alleging ineffective assistance of counsel relating to the waiver itself, see United

States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001), as her plea agreement

states, see Plea Agrmt. at A11.

      The motion to enforce the plea agreement is GRANTED and this appeal is

DISMISSED, without prejudice to Ms. Jackson’s right to raise an ineffective

assistance of counsel claim in a collateral proceeding.


                                        ENTERED FOR THE COURT
                                        PER CURIAM




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