                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                      UNITED STATES CO URT O F APPEALS
                                                                 October 30, 2007
                                                     Elisabeth A. Shumaker
                               TENTH CIRCUIT             Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                         No. 06-4289
 v.                                             (D. Ct. No. 2:04-CR -226-TS)
                                                          (D. Utah)
 M AR TIN A RN OLD INI; JERRO LD
 B OSC HM A ,

          Defendants-Appellants.



                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      After examining the briefs and appellate record, 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         This order and judgment is not binding precedent except under the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.
      M artin Arnoldini and Jerrold Boschma (Appellants) pled guilty to one

count of conspiracy either to commit an offense against or to defraud the United

States in violation of 18 U.S.C. § 371. The district court sentenced both

Appellants to fifty-three months imprisonment. While A ppellants appeal their

sentences, their attorney has filed an Anders brief and a motion to withdraw as

counsel. See Anders v. California, 386 U.S. 738, 744 (1967). Appellants have

filed their own response to the Anders brief, to which the government has

submitted its response, indicating Appellants w aived their right to appeal their

sentences. For the reasons set forth hereafter, we grant counsel’s motion to

withdraw and dismiss this appeal.



                                    I. Background

      Pursuant to separate plea agreements, both Appellants pled guilty to one

count of conspiracy to commit an offense against or to defraud the United States

in violation of 18 U.S.C. § 371. As part of their plea agreements, both stipulated

they participated in a conspiracy to promote and sell a fraudulent trust scheme

designed to evade federal income taxes, defeat the lawful functioning of the

Internal Revenue Service, and fraudulently obtain money or property from United

States citizens by use of the mails and wires. In their statements in advance of

their guilty pleas, and at their plea hearings, both admitted causing a total tax loss

of $3,600,000 to the United States and loss to customers of approximately

                                          -2-
$1,300,000. Each also agreed to waive any and all appeals of his sentence, except

if the sentence imposed was above the maximum statutory sentence, involved an

upward departure from the final United States Sentencing G uidelines (Guidelines)

range determined by the court, or was appealed by the United States; similarly,

each waived the right to challenge his sentence in any collateral review

proceeding, including under 28 U.S.C. § 2255.



      During the R ule 11 colloquy at Appellants’ plea hearings, the district court

thoroughly and comprehensively questioned each Appellant about his guilty plea

and waivers. See Fed. R. Crim. P. 11. Each explicitly confirmed he 1) had read

the plea agreement, discussed it with counsel, and signed it voluntarily and of his

own free will; and 2) understood the offense for which he was charged, the

maximum sentence and other possible sentencing ramifications related to the

offense, and the rights he was giving up by pleading guilty, including his right to

appeal his sentence as indicated in the waiver of appeal provision.



      After the district court accepted Appellants’ guilty pleas, the probation

officer prepared separate presentence reports calculating each sentence under the

applicable Guidelines. For each A ppellant, the presentence report set the base

offense level at 28, which included consideration of the stipulated total tax loss

amount of $3,600,000 and fraud loss to customers in an amount of $1,300,000.

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The presentence reports also recommended reducing the offense level by three

levels for acceptance of responsibility, for a total base offense level of 25. This,

together with a criminal history category of I, resulted in an advisory sentencing

range of fifty-seven to seventy-one months imprisonment.



      Both Appellants filed objections to the presentence reports. The relevant

objections for the purpose of this appeal involved their claims they did not cause

a tax loss of $3,600,000, as admitted in their plea statements and plea hearings.

At their sentencing hearing, Appellants again denied they caused a tax loss of

$3,600,000, stating no negotiations occurred on the amount prior to entering their

pleas, and that the government had led them, through their counsel, to believe this

amount to be accurate, but had now failed to establish that amount as factual.

The district court pointed out each Appellant pled guilty to that amount and

therefore the government did not have the burden of proving the amount; it then

postponed the sentencing hearing, leaving Appellants to make a decision as to

whether they desired to withdraw their guilty pleas and go to trial, and asking the

government whether removal of the three-level reduction for acceptance of

responsibility would be warranted if Appellants continued to contradict the tax

loss amount to which they pled guilty.



      At the subsequent sentencing hearing, the district court noted Appellants

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had not withdrawn their guilty pleas but continued to contest the tax amount

admitted to in their plea statements and to argue the government bore the burden

of establishing the amount with evidence, despite their admissions. The district

court found their persistence in contesting the $3,600,000 amount constituted “a

disingenuous denial and frivolous contesting of a fact constituting relevant

conduct” and removed the three-level reduction for acceptance of responsibility.

Following the district court’s determination a two-level downward departure for

substantial assistance was warranted, it noted the resulting advisory Guidelines

range was sixty-three to seventy-eight months imprisonment. After considering

the sentencing factors under 18 U.S.C. § 3553(a), the district court concluded a

sentence at the high end of the Guidelines range would be justified, based on the

nature and seriousness of the offense, including the number of victims, and to

promote respect for the law, provide adequate deterrence in the future, and protect

the public. However, after considering the history and characteristics of

Appellants, including that the offense was an aberration from their prior conduct

and both had health problems, it sentenced both to fifty-three months

imprisonment – well below the Guidelines range of sixty-three to seventy-eight

months imprisonment and the sixty-month statutory maximum sentence.



      After Appellants filed a timely notice of appeal, their counsel filed an

Anders appeal brief, explaining a review of the record revealed no nonfrivolous

                                         -5-
issues to appeal in this case and moving for an order permitting withdrawal as

counsel. See Anders, 386 U.S. at 744. In support, counsel suggested Appellants

knowingly and voluntarily pled guilty, and their sentences comported with the

Constitution and United States v. Booker, 543 U.S. 220 (2005). However, counsel

did not address the appeal waiver provisions in the plea agreements. Pursuant to

Anders, this court gave Appellants an opportunity to respond to counsel’s Anders

brief. See 386 U.S. at 744.



      Appellants, both practicing attorneys prior to entering their guilty pleas,

filed a response to the Anders brief. Their arguments on appeal contest their

sentences, but not their convictions. 1 In fact, before the district court, and now on

appeal, Appellants have not contested their guilt as to the count charged and to

which they pled guilty, but continue to dispute the sentences imposed. In

challenging their sentences, Appellants attempt to avoid the waivers of their

appeal rights by claiming enforcement of the waivers will result in a miscarriage

of justice, given they would not have pled guilty to the tax loss amount or waived

their right to appeal but for their counsel’s ineffective assistance in failing to

      1
         Generally, Appellants contend the district court erred in: 1) utilizing the
tax loss amount stipulated to because their attorney was ineffective by failing to
negotiate or review any tax loss evidence and inducing them to plead guilty to the
tax loss stipulation; 2) calculating the tax loss based on an “errant methodology”;
3) not granting an acceptance of responsibility reduction; 4) relying on victim
impact reports for sentencing purposes; 5) not granting a minimal role adjustment;
and 6) imposing an erroneous restitution amount.

                                          -6-
negotiate or review any tax loss evidence and, instead, inducing them to enter into

plea agreements containing an unsubstantiated tax loss stipulation. They further

contend their waivers were unknowing because they did not know the tax loss

amount would drive the Guidelines sentencing calculation and that counsel led

them to believe the amount must later be substantiated by the government. 2 In

response, the government points out Appellants waived such appeal rights, which

we construe as a motion or request to enforce the appeal waiver provisions.



                                   II. Discussion

      As required by Anders, we have conducted a full examination of the record



      2
         W ith respect to the miscarriage of justice exception, Appellants also
argue the district court erroneously relied on victim impact statements and
removed the acceptance of responsibility departure in calculating their sentences.
The victim impact statements have not been provided on appeal. However, it is
clear Appellants pled guilty to the conspiracy which negatively affected the
victims in the victim impact statements, and Appellants have provided no
documentation or other evidence to show they were not involved in the
conspiracy at the time of such victimization, or that the conduct of the others in
the conspiracy causing such victimization was not reasonably foreseeable. See
United States v. M assey, 48 F.3d 1560, 1570-71 (10th Cir. 1995). Thus, we find
no error with respect to the district court’s consideration of those statements, even
if, as Appellants contend, they are not expressly named in those statements.
Therefore, the miscarriage of justice exception is not implicated.

       As to the issue surrounding the district court’s determination on
Appellants’ acceptance of responsibility, it seems sufficiently intertwined with
resolution of their ineffective assistance of counsel claim that its disposition
cannot occur until resolution of the ineffective assistance of counsel issue, should
Appellants bring a collateral proceeding, as addressed hereafter. Until resolution
of that issue, we cannot say the miscarriage of justice exception is implicated.

                                         -7-
before us. See 386 U.S. at 744. W e have also considered the law applicable to

waivers of appeal rights. This court uses a three-part analysis in reviewing an

appeal brought after the defendant entered into an appeal waiver to determine

whether: 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 w ill not result in a miscarriage of justice.

United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per

curiam). 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 w aiver is otherwise

unlawful.” Id. at 1327 (citation omitted and emphasis added).



      W ith respect to claims of ineffective assistance of counsel, we have held it

is “inconceivable to hold [an appeal] waiver enforceable when it would deprive a

defendant of the opportunity to assert his Sixth Amendment right to counsel

where he had accepted the waiver in reliance on delinquent representation.”

United States v. Cockerham, 237 F.3d 1179, 1184 (10th Cir. 2001) (quotation

marks and citation omitted). W e have also determined claims of ineffective

assistance of counsel sufficient to meet the miscarriage of justice exception must

implicate the entering or negotiation of the plea and not merely counsel’s

                                          -8-
ineffectiveness at sentencing. See id. at 1185.



      In this case, Appellants are essentially claiming counsel was ineffective in

the negotiation of their plea agreements and they would not have entered into the

plea agreements designating $3,600,000 as the tax loss amount or waived their

right to an appeal but for their reliance on counsel with respect to the tax loss

amount. They bolster their ineffective assistance of counsel contention by

claiming their waivers were unknowing, given counsel did not advise them the tax

loss amount would determine the Guidelines range calculation and led them to

believe the amount must later be substantiated by the government. Thus, their

argument implicates the narrow miscarriage of justice exception for the purpose

of sufficiently raising an ineffective assistance of counsel argument with respect

to their plea waivers.



      However, making the requisite ineffective-assistance argument does not

end our analysis or otherwise allow us to proceed to address the merits of

Appellants’ ineffective assistance of counsel claim for the purpose of determining

whether their appeal waivers are enforceable. This is because we generally only

consider ineffective assistance of counsel claims on collateral review and not on

direct appeal. See Hahn, 359 F.3d at 1327 n.13. “‘Even if the record appears to

need no further development, the claim should still be presented first to the

                                          -9-
district court in collateral proceedings ... so the reviewing court can have the

benefit of the district court’s views.’” United States v. Delacruz-Soto, 414 F.3d

1158, 1168 (10th Cir. 2005) (quoting United States v. Galloway, 56 F.3d 1239,

1240 (10th Cir. 1995)). “Therefore, ‘there is only a slight chance that we will

forego the development of a factual record or at least an opinion by the district

court on the subject in the first instance.’” Id. (quoting Galloway, 56 F.3d at

1241). In this case, after a review of the record, we decline to address the issue

of ineffective assistance of counsel for the purpose of determining whether

Appellants’ appeal waivers are unenforceable under the miscarriage of justice

exception, leaving the issue of ineffective assistance of counsel for the district

court’s resolution should Appellants pursue the same claim under 28 U.S.C.

§ 2255.



                                   III. Conclusion

      For these reasons, we GR ANT, without prejudice, the government’s

request to enforce the appeal waivers in Appellants’ plea statements, GRANT




                                         -10-
counsel’s motion to withdraw, and DISM ISS this appeal.



                                    Entered by the C ourt:


                                    W ADE BRO RBY
                                    United States Circuit Judge




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