                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    August 2, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                     No. 11-6106
                                                 (D.C. No. 5:10-CR-00098-HE-1)
    MICHAEL RALPH LAMBERTI,                               (W.D. Okla.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before MURPHY, O’BRIEN, and TYMKOVICH, Circuit Judges.



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

appeal waiver contained in defendant Michael Ralph Lamberti’s plea agreement.

We grant the government’s motion and dismiss the appeal.

         Mr. Lamberti pleaded guilty to uttering counterfeit securities in violation of

18 U.S.C. § 513(a). Pursuant to the plea agreement, Mr. Lamberti “knowingly



*
      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 This order and judgment is not binding precedent, except under the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.
and voluntarily waive[d] his right to . . . [a]ppeal or collaterally challenge his

guilty plea, sentence and restitution imposed, and any other aspect of his

conviction, including, but not limited to,” his right to appeal any pretrial rulings

and “his sentence as imposed by the Court and the manner in which the sentence

is determined, provided the sentence [wa]s within or below the advisory guideline

range determined by the Court to apply to [his] case.” Plea Agreement at 6. The

district court determined that Mr. Lamberti’s advisory guideline range was 120

months’ imprisonment, which was the sentence it imposed.

      Notwithstanding his appeal waiver, Mr. Lamberti has filed a notice of

appeal. In his docketing statement, he states that he wishes to appeal the district

court’s denial of his request for a psychological examination, to assert ineffective

assistance of counsel, and to raise other issues to be determined later. The

government has filed this motion to enforce the plea agreement pursuant to United

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

      We apply a three prong test to determine if an appeal waiver is enforceable,

asking “(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.” Id. at 1325. A miscarriage of justice will result if

(1) “the district court relied on an impermissible factor such as race”;

(2) “ineffective assistance of counsel in connection with the negotiation of the

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waiver renders the waiver invalid”; (3) “the sentence exceeds the statutory

maximum”; or (4) “the waiver is otherwise unlawful.” Id. at 1327 (quotation

omitted).

      Mr. Lamberti first contends that the docketing statement is not binding as

to any issue he may wish to raise on appeal, and thus it is premature to enforce

the waiver because he may ultimately raise issues that are outside the scope of his

waiver. His argument is without merit. We have explained that one purpose of

an appellate waiver is to save the government the cost of prosecuting an appeal.

See id. at 1325. To declare the motion premature goes against that purpose, as

well as Tenth Circuit Rules 27.2(A)(1)(d), 27.2(A)(3)(b), and 27.2(C), which

permit the government to file a motion to enforce an appeal waiver within twenty

days of the transmittal of the record, before the opening brief is due, thus

suspending the appellate briefing schedule. See also Hahn, 359 F.3d at 1328

(ruling that the government is not required to brief an appeal until after its motion

to enforce is ruled upon). Thus, the government’s motion to enforce the appeal

waiver does not prematurely seek to resolve this appeal. Counsel’s failure to

identify the issues on appeal does not make the government’s motion to enforce

premature.

      Mr. Lamberti next contends that the district court deviated upward from the

sentencing guidelines–and thus his appeal is outside the scope of his waiver–when

it ordered his federal sentence to run consecutive to a state sentence. He contends

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the district court was required to run the sentences concurrently under

United States Sentencing Guideline § 5G1.3. “Under 18 U.S.C. § 3584(a),

a district court has the discretion to impose consecutive or concurrent sentences.”

United States v. Rodriguez-Quintanilla, 442 F.3d 1254, 1256 (10th Cir. 2006).

“Section 5G1.3 is advisory, [and] not binding on, the way a district court

exercises its § 3584 discretion.” United States v. Campbell, 617 F.3d 958, 961

(7th Cir. 2010). Mr. Lamberti’s argument is simply a challenge to the district

court’s calculation of his sentence, which he expressly waived in his appeal

waiver. To hold the appeal waiver does not encompass alleged sentencing errors

“would nullify the waiver based on the very sort of claim it was intended to

waive,” United States v. Smith, 500 F.3d 1206, 1213 (10th Cir. 2007), and would

ignore the concession in the plea agreement that the applicable guideline range is

the one “determined by the Court to apply to this case,” Plea Agreement at 6.

      Finally, Mr. Lamberti argues he may wish to argue that his counsel was

constitutionally ineffective in connection with the negotiation of his plea

agreement and that this court cannot now evaluate whether it would be a

miscarriage of justice to enforce the appeal waiver based upon the limited and

inadequate record on appeal. Mr. Lamberti did not waive his right to assert that

his attorney provided ineffective assistance of counsel during the plea

negotiations. See United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir.

2001) (holding that a waiver of appellate rights “does not waive the right to bring

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a § 2255 petition based on ineffective assistance of counsel claims challenging

the validity of the plea or the waiver.”). But as Mr. Lamberti acknowledges,

ineffective assistance of counsel claims must ordinarily be raised on collateral

review, not on direct appeal, and “[t]his rule applies even where a defendant seeks

to invalidate an appellate waiver based on ineffective assistance of counsel.”

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

      Based upon our review of the motion, the record and Mr. Lamberti’s

response, we conclude that his proposed appeal falls within the scope of the

appeal waiver, that he knowingly and voluntarily waived his appellate rights, and

that enforcing the waiver would not result in a miscarriage of justice.

Accordingly, we GRANT the motion to enforce the appeal waiver and DISMISS

the appeal. Appellant’s motion for leave to file a supplemental authority in

response to the motion to enforce the plea agreement is DENIED as moot.




                                       ENTERED FOR THE COURT
                                       PER CURIAM




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