                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                         May 11, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-1414
                                                (D.C. No. 1:17-CR-00123-CMA-1)
DAMIAN MARC SMITH,                                          (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MORITZ, KELLY, and EID, Circuit Judges.
                  _________________________________

      Damian Marc Smith accepted a plea agreement with an appeal waiver and

pleaded guilty to possession of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B). After he was sentenced to 97 months’ imprisonment, a sentence

that fell within the penalty range provided by statute, he appealed. The United States

has moved to enforce the appeal waiver under United States v. Hahn, 359 F.3d 1315,

1328 (10th Cir. 2004) (en banc) (per curiam).




      *
         This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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.
      Mr. Smith’s counsel filed a response indicating she could find no

non-frivolous basis for opposing the government’s motion, and requesting leave to

withdraw as counsel. We provided Mr. Smith the opportunity to respond. See Anders

v. California, 386 U.S. 738, 744 (1967). He did so, asserting that he was subjected to

prosecutorial misconduct that prejudiced the sentencing court against him, that his

public defender failed to provide him with effective assistance of counsel, and that

the district court specifically advised him at sentencing that he had the right to

appeal.

      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.” 359 F.3d at 1325. Our independent review of the

record, see Anders, 386 U.S. at 744, does not reveal any non-frivolous arguments

regarding the enforceability of the waiver that Mr. Smith can pursue on direct appeal.

      Scope of the Waiver. First, we consider whether the appeal falls within the

scope of the waiver. Hahn, 359 F.3d at 1325. The plea agreement provides that

Mr. Smith “waives the right to appeal any matter in connection with this prosecution,

conviction, or sentence unless . . . the sentence exceeds the maximum penalty

provided in the statute of conviction; or . . . the government appeals the sentence

imposed.” Plea Agreement at 2. Mr. Smith also reserved the right to seek collateral

review of claims concerning a retroactive change in the sentencing guidelines or the



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sentencing statute, ineffective assistance of counsel, or prosecutorial misconduct. Id.

at 2-3.

          Mr. Smith complains of prosecutorial misconduct that affected his sentencing.

In the plea agreement, he reserved the right to bring a collateral proceeding asserting

prosecutorial misconduct claims, limited to those that are “available in a collateral

attack.” Id. at 2. To the extent he seeks to bring such claims in this direct appeal,

rather than a collateral proceeding, they fall within the scope of his waiver of the

right to directly appeal from matters pertaining to his prosecution, conviction, and

sentence.

          Mr. Smith also challenges his counsel’s performance. Claims regarding

ineffective assistance of counsel are explicitly excluded from the scope of

Mr. Smith’s waiver. But that exclusion applies to collateral review, not this direct

appeal. In addition, it has long been the rule that ineffective-assistance claims

generally should be raised in collateral proceedings under 28 U.S.C. § 2255.

See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). “This

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); see also Hahn, 359 F.3d at 1327 n.13. Therefore, to the extent that

Mr. Smith wishes to allege ineffective assistance of counsel, he will have to do so by

bringing a § 2255 motion.

          Finally, Mr. Smith argues that the district court specifically advised him at

sentencing that he had a right to appeal. But “statements made after the entry of the

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

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

372 F.3d 1204, 1206 (10th Cir. 2004) (quoting Hahn, 359 F.3d at 1328 n.14). We

conclude that all claims described by Mr. Smith in his response fall within the scope

of the waiver as it pertains to this appeal.

       Knowing and Voluntary. We next consider whether the waiver was

knowing and voluntary. Hahn, 359 F.3d at 1325. In evaluating this factor, we

generally examine the language of the plea agreement and the adequacy of the

Fed. R. Crim. P. 11 plea colloquy. Id. It is Mr. Smith’s burden “to provide support

for the notion that he did not knowingly and voluntarily enter into his plea

agreement.” Id. at 1329.

       The plea agreement’s waiver paragraph represents that the appeal waiver was

knowingly and voluntarily accepted. Further, during the plea colloquy the district

court advised Mr. Smith of the appeal waiver. The court confirmed Mr. Smith’s

understanding that by entering into the plea agreement, he was giving up his right to

appeal his conviction and sentence except in the circumstances described in the plea

agreement. Mr. Smith acknowledged that no one had forced him to plead guilty, he

had discussed the plea agreement with his attorney, and he was satisfied with his

attorney’s representation. The district court found that Mr. Smith was “fully

competent and capable of entering an informed plea,” Change of Plea Tr. at 27, and

that his guilty plea was entered “knowingly, voluntarily, and intelligently,” id. at 28.



                                               4
      Mr. Smith asserts that the prosecution “forc[ed] [a] terrified defendant[] into

[an] unfairly worded plea deal[].” Pro Se Resp. at 2. However, he fails to explain

how the plea agreement was unfairly worded or how he was forced into agreeing to

any unfair wording. His unsworn response cannot impeach the official record, which

fails to support any non-frivolous argument that the waiver was not knowing and

voluntary.

      Miscarriage of Justice. Finally, we consider whether enforcing the waiver

would result in a miscarriage of justice, as Hahn defines that term. Hahn, 359 F.3d

at 1325, 1327. A miscarriage of justice occurs “[1] where the district court relied on

an impermissible factor such as race, [2] where ineffective assistance of counsel in

connection with the negotiation of the waiver renders the waiver invalid, [3] where

the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise

unlawful.” Id. at 1327 (brackets in original; internal quotation marks omitted). Only

ineffective assistance of counsel potentially appears to be implicated here. As stated

above, however, any such allegations should be raised in a § 2255 proceeding.

See Porter, 405 F.3d at 1144; Hahn, 359 F.3d at 1327 n.13.

      For these reasons, we determine that it is “wholly frivolous” for Mr. Smith to

oppose the motion to enforce his plea agreement’s appeal waiver in this direct appeal.

Anders, 386 U.S. at 744. The motion to enforce is granted, and this matter is

dismissed without prejudice to Mr. Smith filing a § 2255 motion alleging ineffective

assistance of counsel, or seeking collateral review of any other matters permitted to



                                           5
be asserted on collateral review under the terms of his plea agreement. Counsel’s

request to withdraw is granted.


                                          Entered for the Court
                                          Per Curiam




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