                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                      January 9, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court



 U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,
                                                         No. 05-6005
                                               (W estern District of Oklahoma)
 v.
                                                (D.C. No. CR-03-242-01-T)
 OLIVER KEITH BROWN ER,

              Defendant-Appellant.



                           OR D ER AND JUDGM ENT *


Before L UC ER O, M cKA Y, and M U RPH Y, Circuit Judges.




I.    IN TR OD UC TIO N

      Defendant-Appellant, Oliver Browner, was charged in a multicount

indictment with drug and firearms offenses. Browner pleaded guilty and waived

his right to appeal, but subsequently moved to withdraw his guilty plea based, in

part, on a claim of ineffective assistance of counsel. On appeal, Browner claims

the ineffective assistance of his counsel in refusing to subpoena telephone records




      *
       This order and judgment is not binding precedent, except under the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 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
and witnesses left him no choice but to plead guilty. He alleges the district court

abused its discretion by denying his motion to withdraw his guilty plea and

contends his plea should be set aside as unenforceable. Browner also seeks a

remand for resentencing in light of United States v. Booker, 543 U.S. 220 (2005).

      For the reasons set forth below, this court dismisses Browner’s ineffective

assistance claim. As to Browner’s sentencing claim, however, we remand this

case for resentencing.

II.   FACTS

      After the commencement of trial, Browner, assisted by counsel, entered

into plea negotiations w ith the Government. Browner agreed to plead guilty to

conspiracy to possess with intent to distribute and to distribute fifty grams or

more of cocaine base, in violation of 21 U.S.C. § 846. In exchange, the

Government agreed to dismiss the remaining counts in the indictment and an

Information seeking enhanced punishment. Pursuant to the plea agreement,

Browner agreed to waive his right to appeal or collaterally challenge his guilty

plea and any other aspect of his conviction, except as to subsequent changes in

the law determined by this court or the Supreme Court to be applicable on direct

appeal. After a colloquy regarding Browner’s waiver of his rights, mandated by

Rule 11 of the Federal Rules of Criminal Procedure, the district court accepted

Browner’s guilty plea.




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      At the beginning of his sentencing proceeding, however, Browner denied

his guilt. The district court interpreted Browner’s denial as a motion to withdraw

the guilty plea and held an evidentiary hearing. Browner claimed he only pleaded

guilty to avoid a mandatory life sentence. He argued his counsel had

ineffectively represented him by failing to subpoena witnesses and telephone

records, thereby violating his Sixth Amendment right to counsel. Browner told

the court he would not have pleaded guilty if his counsel had issued the

subpoenas. The court denied Browner’s motion.

      Browner also objected to the mandatory application of the United States

Sentencing Guidelines. Overruling Browner’s objection, the district court applied

the Guidelines in a mandatory fashion and sentenced Browner to life

imprisonment followed by five years’ supervised release. The court also imposed

an alternative sentence of thirty-five years in the event the G uidelines were

subsequently declared unconstitutional.

      Browner filed a notice of appeal and the Government filed a motion to

enforce the appeal waiver provision of the plea agreement. In light of this court’s

post-Booker decisions addressing a defendant’s right to appeal non-constitutional

Booker error, the Government withdrew its motion to enforce the plea agreement

with respect to the sentence imposed.




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III.   D ISC USSIO N

A.     Brow ner’s Ineffective Assistance Claim M ust Be Brought in C ollateral
       Proceedings

       This court has jurisdiction under 28 U.S.C. § 1291 to consider Brow ner’s

appeal from the district court’s denial of his motion to withdraw his guilty plea.

United States v. Hahn, 359 F.3d 1315, 1320 (10th Cir. 2004) (en banc). As

Browner concedes, however, the plea agreement contains a waiver of his appellate

rights. This court has held “an 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 the waiver provision.” United States v. Elliott, 264 F.3d 1171, 1174

(10th Cir. 2001) (quotation omitted). W e must, therefore, first determine whether

Browner’s waiver of his appellate rights is enforceable. If it is, this court must

dismiss Browner’s appeal from the denial of his motion to withdraw his guilty

plea. Hahn, 359 F.3d. at 1328.

       The enforceability of an appeal waiver is assessed according to a three-

pronged inquiry: (1) whether the appeal falls within the scope of the waiver, (2)

whether the defendant’s waiver of his rights was knowing and voluntary, and (3)

whether a miscarriage of justice would result from enforcement of the waiver. Id.

at 1325. A miscarriage of justice can only result where one of four situations has

occurred, including when “ineffective assistance of counsel in connection with the




                                         -4-
negotiation of the waiver renders the waiver invalid.” Id. at 1327 (citing Elliott,

264 F.3d at 1173).

       Browner’s claim implicates only the third prong of Hahn and, therefore,

we need only address the third prong. See United States v. Porter, 405 F.3d 1136,

1143 (10th Cir. 2005). Browner argues his counsel’s failure to subpoena

witnesses and telephone records left him no choice but to plead guilty, and

amounted to ineffective assistance of counsel in connection with the negotiation

of the plea and the waiver. His counsel’s inaction, he argues, amounts to a

miscarriage of justice under Hahn and should entitle him to withdraw his plea.

      After reviewing the record and Browner’s allegations, this court determines

Browner’s ineffective assistance of counsel claim is not barred by the appeal

waiver. His claim implicates the narrow exception recognized in Hahn and Elliott

and explained in United States v. Cockerham, 237 F.3d 1179, 1184 (10th Cir.

2001), that claims of ineffective assistance of counsel in negotiation of a plea

agreement cannot be barred by the agreement’s appeal waiver provision.

Browner’s narrowly drawn argument is that his counsel was unwilling to

subpoena telephone records and a witness that would have provided defenses to

the charges against him and proven his innocence. He contends he would not

have pleaded guilty had his lawyer obtained the exculpatory evidence Browner

asserts was available. Browner, in essence, argues he had no choice but to accept

the plea, since “three-fourths of his case was based on the [disputed] telephone

                                         -5-
calls.” In Cockerham this court adopted the view that “[i]t is altogether

inconceivable to hold such a waiver enforceable when it would deprive a

defendant of the opportunity to assert his Sixth Amendment right to counsel

where he had accepted the waiver in reliance on delinquent representation.”

Cockerham, 237 F.3d at 1184 (quotation omitted). Browner’s claim makes the

required connection between ineffective assistance of counsel and his acceptance

of the plea agreement and appeal waiver. His claim, therefore, falls within the

Elliott/Hahn miscarriage-of-justice exception to the enforceability of his appeal

waiver.

      Claims of ineffective assistance of counsel, however, should generally be

brought in a collateral proceeding rather than on direct appeal. Hahn, 359 F.3d at

1327 n.13; United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en

banc) (“Ineffective assistance of counsel claims . . . brought on direct appeal are

presumptively dismissible, and virtually all will be dismissed.”). Absent limited

exceptions not applicable here, this court will dismiss such claims, determining

them to be more appropriate for factual development during collateral

proceedings in the district court. Galloway, 56 F.3d at 1240; United States v.

Edgar, 348 F.3d 867, 869 (10th Cir. 2003) (noting this court’s preference to defer

consideration even when issues are sufficiently developed). Although the district

court in this case did consider some of Brow ner’s complaints with his counsel’s

performance, the factual record is not sufficiently developed for this court to

                                         -6-
consider the merits of Browner’s claim and we see no other reason to depart from

our general practice.

      This court, therefore, declines to reach the merits of Browner’s ineffective

assistance of counsel claim. If Browner pursues this claim, he must do so under

28 U.S.C. § 2255. Cockerham, 237 F.3d at 1187 (“[A] plea agreement waiver of

post-conviction rights does not waive the right to bring a § 2255 petition based on

ineffective assistance of counsel claims challenging the validity of the plea or the

waiver.”).

B.    Non-Constitutional Booker Error Requires Remand

      This court has jurisdiction to review Browner’s sentence pursuant to 18

U.S.C. § 3742 and 28 U.S.C. § 1291. At sentencing, Browner objected to the

imposition of a mandatory Guidelines sentence as potentially inconsistent with

the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004).

The district court overruled the objection and imposed a life sentence followed by

five years’ supervised release; the court also imposed an alternative sentence of

thirty-five years’ imprisonment in the event the Supreme Court declared the

Guidelines unconstitutional. Browner’s appeal waiver specifically preserved his

right to appeal based on changes in the law applicable on direct appeal.

      The district court’s mandatory application of the Sentencing Guidelines in

sentencing Browner to life imprisonment constituted non-constitutional Booker

error. See United States v. Gonzales-Huerta, 403 F.3d 727, 731–32 (10th Cir.

                                         -7-
2005) (en banc). W hen a defendant preserves a non-constitutional Booker claim,

as Browner did here, this court reviews the district court’s error for harmlessness.

United States v. Dowell, 430 F.3d 1100, 1112 (10th Cir. 2005). The Government

bears the burden of showing, by a preponderance of the evidence, that the error in

sentencing did not affect the defendant’s substantial rights. Id. A sentencing

error does not affect a defendant’s substantial rights if it “did not affect the

sentence imposed by the district court.” Id.

       In this case, the district court’s alternative sentence of thirty-five years was

far below the Guidelines’ mandatory life sentence. The Government concedes

that, under these circumstances, it cannot show the district court’s error was

harmless. Therefore, this court remands Browner’s case to the district court for

resentencing in accordance with Booker.

IV .   C ON CLU SIO N

       For the reasons given above, this court dismisses Browner’s appeal from

the district court’s denial of his motion to withdraw his guilty plea. Browner

must pursue his ineffective assistance of counsel claim, if at all, in a collateral

proceeding. B ecause of the district court’s sentencing error, however, we

remand this case for the sole purpose of resentencing.

                                         ENTERED FOR THE COURT


                                         M ichael R. M urphy
                                         Circuit Judge

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