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

                            FOR THE TENTH CIRCUIT                           April 18, 2018
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                       No. 17-6181
                                                 (D.C. No. 5:16-CR-00194-R-2)
RAMON DE JESUS QUEVEDO-                                  (W.D. Okla.)
VALDEZ,

     Defendant - Appellant.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before MATHESON, BACHARACH, and EID, Circuit Judges.
                  _________________________________

      Ramon De Jesus Quevedo-Valdez accepted a plea agreement with an appeal

waiver and pleaded guilty to conspiring to possess 50 grams or more of

methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 846. After

he was sentenced to 168 months in prison, at the low end of the advisory Guidelines

range, 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This order and judgment is not binding precedent, except under the doctrines of law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. Quevedo’s counsel filed a response (1) indicating that she could find no

defects in the waiver to render it unenforceable and that a challenge to the waiver

would be frivolous, and (2) renewing an earlier motion to withdraw as counsel. We

gave Mr. Quevedo the opportunity to respond. See Anders v. California, 386 U.S.

738, 744 (1967). He did so, asserting that his plea was not knowing and voluntary

due to communication problems with non-Spanish speaking counsel and that his

attorney and the prosecutor misinformed him about the plea, telling him he would

receive a five-year sentence if he accepted it. Finally, the government filed a reply in

support of its motion.

      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. Quevedo 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. Quevedo “waives his right to appeal his guilty plea, and any other aspect of his

conviction,” and “waives his right to appeal his sentence as imposed by the Court . . .

and the manner in which the sentence is determined.” Mot. to Enforce, Attach. 1

at 9-10. The only exception is the “right to appeal specifically the substantive

                                           2
reasonableness” of an above-Guidelines sentence. Id. at 10. But that exception does

not apply because the sentence was at the low end of the Guidelines range.

      Mr. Quevedo states that he seeks to appeal “violation of Rule 11 (eleven)

proceeding” and “sentencing disparities between his co-defendants and the

defendant[.]” Pro Se Resp. at 2. It is unclear what violations of Rule 11 he might be

referring to. Without more information, we cannot conclude that such issues fall

outside the broad scope of the waiver. And alleged sentencing disparities certainly

fall within the scope of the waiver.

      In addition, the docketing statement and Mr. Quevedo’s pro se response

indicate that he may wish to challenge his counsel’s performance. He states that

counsel misinformed him about the plea and that he and counsel had communication

issues. Claims regarding ineffective assistance of counsel are explicitly excluded

from the scope of Mr. Quevedo’s waiver. It has long been the rule, however, 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. Quevedo wishes to allege

ineffective assistance of counsel, he will have to do so by bringing a § 2255 motion.

      Knowing and Voluntary. We next consider whether the waiver was

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

                                           3
generally examine the language of the plea agreement and the adequacy of the

Fed. R. Crim. P. 11 plea colloquy. Id. It is Mr. Quevedo’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 Mr. Quevedo

was afforded the services of an interpreter. He was informed of the minimum and

maximum penalties, and he asserted his understanding that his sentence was solely

within the control of the court. He informed the district court that he was pleading

guilty of his own free will, not due to any extraneous promises (including promises

of leniency) or force, and he denied that any government officer or agent had

promised or suggested he would receive a lighter sentence or other form of leniency.

He asserted that he was satisfied with his attorney and believed he had done all one

could do to counsel and assist him. When the district court noted that Mr. Quevedo

was waiving his right to appeal, Mr. Quevedo acknowledged his understanding and

stated that he did not have any questions about the waiver.

      Mr. Quevedo’s pro se response asserts that he was “under ‘extreme duress’”

and the plea agreement was “completely misinterpreted,” so that he thought he would

receive a five-year sentence. Pro Se Resp. at 2. However, Mr. Quevedo points to no

record evidence to support these assertions. His unsworn response cannot impeach

the official record, which fails to support any non-frivolous argument that the waiver

was not knowing and voluntary.

                                           4
      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 (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. Quevedo

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. Quevedo filing a § 2255 motion alleging

ineffective assistance of counsel. Counsel’s renewed motion to withdraw is granted.


                                           Entered for the Court
                                           Per Curiam




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