                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS August 16, 2011

                            FOR THE TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                     Clerk of Court


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                         No. 11-3045
    v.                                        (D.C. No. 2:07-CR-20099-JWL-13)
                                                           (D. Kan.)
    JESSIE DICKINSON,

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before LUCERO, EBEL, and MATHESON, Circuit Judges.



         Jessie Dickinson pleaded guilty to conspiracy to distribute more than 1,000

kilograms of marijuana and more than 5 kilograms of cocaine. As part of his plea

agreement, he “knowingly and voluntarily waive[d] any right to appeal . . . any

matter in connection with [his] prosecution, . . . [his] conviction, or the

components of the sentence,” so long as the sentence imposed was below the



*
      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 This order and judgment is not binding precedent, except under the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.
statutory maximum and within the advisory guideline range determined

appropriate by the district court. Plea Agreement at 12. The district court entered

judgment and sentenced Mr. Dickinson to 168 months’ imprisonment, which was

at the lowest end of the advisory guideline range determined by the court.

      In spite of the waiver in his plea agreement, Mr. Dickinson filed a notice of

appeal. He states in his docketing statement that he wishes to appeal the district

court’s determination of the amount of drugs he converted to crack cocaine in

calculating his sentence. The government has filed a motion to enforce the

appellate waiver in Mr. Dickinson’s plea agreement pursuant to United States v.

Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Under Hahn, 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.” Id. at 1325.

      In his response, Mr. Dickinson does not address any of the Hahn factors.

Rather, he contends the record is too incomplete to assess the factors at this time.

He indicates that he may wish to argue that his counsel was constitutionally

ineffective in connection with the negotiation of his plea agreement, which would

constitute a miscarriage of justice. See id. at 1327. One purpose of an appellate

waiver is to save the government from the cost of prosecuting an appeal. Id. at

1325. To assert that the government’s motion is premature goes against that

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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 is

not premature. The record on appeal is complete. Counsel’s inability to identify

any basis to challenge the enforceability of the appeal waiver does not make the

government’s motion to enforce premature.

         Mr. Dickinson did not waive his right to assert that his attorney provided

ineffective assistance of counsel during the plea negotiations. See Plea

Agreement at 12 (citing United States v. Cockerham, 237 F.3d 1179, 1187

(10th Cir. 2001)). But 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).




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      Accordingly, we GRANT the government’s motion to enforce the appeal

waiver and DISMISS the appeal, without prejudice to Mr. Dickinson asserting an

ineffective assistance of counsel claim in a 28 U.S.C. § 2255 motion.



                                      ENTERED FOR THE COURT
                                      PER CURIAM




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