                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 3, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 10-3156
                                              (D.C. No. 6:07-CR-10221-MLB-2)
    TYRONE L. ANDREWS,                                    (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges.


         Tyrone L. Andrews pleaded guilty to multiple drug crimes, including

conspiracy to distribute cocaine, distribution of cocaine, use of a communication

device to facilitate a drug trafficking crime, and maintaining a drug-involved

premise. He was sentenced to 240 months’ imprisonment. His plea agreement

included a waiver of both his right to appeal and to collaterally attack any matter

in connection with his prosecution or conviction. The agreement also included a


*
      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 This order and judgment is not binding precedent, except under the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.
waiver of his right to appeal his sentence, with one limited exception. Despite

these waivers in his plea agreement, Mr. Andrews has now filed an appeal

challenging his convictions and sentence. The government has moved to enforce

the appeal waiver in the plea agreement pursuant to our decision in United States

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

motion and dismiss the appeal.

      In his plea agreement, Mr. Andrews agreed to waive his right to appeal his

convictions and sentence, reserving the right to appeal only if the sentence he

received was above the advisory sentencing guideline range as determined by the

district court. At the plea hearing, the district court conducted a proper Rule 11

plea colloquy, asking Mr. Andrews if he understood the rights he was waiving by

pleading guilty, including his right to appeal. At sentencing, the court determined

the applicable sentencing range to be 210 to 262 months, and sentenced Mr.

Andrews within that range.

      Mr. Andrews’ counsel filed a response to the government’s motion to

enforce the appeal waiver, stating that she “[h]ad undertaken a diligent and

conscientious examination of the record below in accordance with Anders v.

California, 386 U.S. 738 (1967),” and that there were “no grounds upon which to

resist the appeal waiver.” Resp. at 7. She concluded that defendant’s direct

appeal was frivolous and requested permission to withdraw as counsel. See

Anders, 386 U.S. at 744 (authorizing counsel to request permission to withdraw

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where counsel conscientiously examines a case and determines that an appeal

would be wholly frivolous). We gave Mr. Andrews an opportunity to file a pro se

response to the motion by November 8, 2010; to date he has neither filed a

response nor sought an extension to file a response.

      In the response, counsel did raise two issues on behalf of her client that we

will briefly address. First, Mr. Andrews contends he received ineffective

assistance of counsel with respect to the negotiation of his plea agreement.

Although this specific type of ineffective-assistance-of-counsel claim is not

barred by his plea agreement, see United States v. Cockerham, 237 F.3d 1179,

1187 (10th Cir. 2001), such claims must ordinarily be raised in a collateral

proceeding under 28 U.S.C. § 2255, not on direct appeal, see United States v.

Porter, 405 F.3d 1136, 1144 (10th Cir. 2005). Second, Mr. Andrews asserts that

the district court at sentencing “informed him he had a right to appeal his

conviction and sentence.” Resp. at 7. At sentencing, the district court stated, “to

the extent you did not waive your right to appeal in the plea agreement, . . . you

may appeal your conviction and your sentence.” Mot. to Enforce, Attach. C at 46.

The district court appropriately qualified his statement by referring Mr. Andrews

to the plea agreement for the ultimate determination as to whether he could

appeal. Even if the district court’s statement could be viewed as misleading,

however, a sentencing court’s “statements made after the entry of the appeal

waiver and the district court’s acceptance of the guilty plea cannot overcome the

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plain language of the appeal waiver.” See United States v. Arevalo-Jimenez,

372 F.3d 1204, 1206 (10th Cir. 2004) (quotation omitted).

      Under Anders, 386 U.S. at 744, we have conducted an independent review

of the motion to enforce. We will enforce a criminal defendant’s waiver of his

right to appeal so long as the following three conditions are met: (1) “the

disputed appeal falls within the scope of the waiver of appellate rights,” (2) the

defendant’s waiver of his appellate rights was knowing and voluntary, and

(3) enforcing the waiver will not result in a miscarriage of justice. Hahn,

359 F.3d at 1325. We have reviewed the plea agreement, the transcripts of the

plea and sentencing hearings, and the response from counsel, and we conclude

that the Hahn factors have been satisfied.

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

waiver in the plea agreement and we DISMISS the appeal. We also GRANT

counsel’s motion to withdraw.


                                       ENTERED FOR THE COURT
                                       PER CURIAM




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