                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 15, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 07-3281
                                                (D.C. No. 06-CR-10231-WEB)
    SHERMAN E. GIBBS,                                     (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and McCONNELL, Circuit Judges.



         Sherman E. Gibbs pled guilty to one count of possession with intent to

distribute cocaine. As part of his plea agreement, Mr. Gibbs waived his right to

appeal from his conviction, sentence, and any other matter in connection with his

prosecution. Nevertheless, Mr. Gibbs filed a notice of appeal that he would be

challenging his conviction and sentence, as well as all other adverse rulings. 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 This order and judgment is not binding precedent, except under the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.
government has filed a motion to enforce the plea agreement under United States

v. Hahn, 359 F.3d 1315 (10th Cir. 2004). 1 We grant the motion and dismiss the

appeal.

                                  I. Background

      On February 26, 2007, Mr. Gibbs entered his guilty plea. His plea

agreement stated that he was “knowingly and voluntarily waiv[ing] any right to

appeal or collaterally attack any matter in connection with this prosecution,

conviction and sentence.” Mot., Attach. A at 5, ¶10. Because Mr. Gibbs had a

prior felony drug conviction and a prior misdemeanor drug conviction that

resulted in a sentence of longer than one year, he was considered a career

offender. A presentence investigation report (PIR) was prepared, which indicated

that Mr. Gibbs’ total offense level was 31 with a criminal history category of VI,6

resulting in an advisory guidelines range of 188 to 235 months.

      On May 22, prior to sentencing, Mr. Gibbs filed a motion to set aside his

guilty plea, arguing that his counsel had provided him with incorrect information


1
       When the government filed its motion, the 2007 version of 10th Cir. R.
27.2(A)(3) applied, which required that a motion to enforce a plea waiver be filed
within fifteen days after the notice of appeal was filed. The prior version of Rule
27.2 did allow for a motion to be filed out of time upon a showing of good cause.
The government notes that it did not file its motion within fifteen days of the
filing of the notice of appeal because it was waiting for the necessary transcripts
to become available, including the sentencing hearing transcript. That transcript
became available on December 11, 2007, and the government filed its motion on
December 13. Accordingly, we conclude that there was good cause for the
government’s late filing.

                                        -2-
that his misdemeanor conviction would not result in a career offender

classification. The district court denied the motion to set aside the guilty plea,

stating the following:

      Taking all of the foregoing factors into account, the court concludes
      the motion to withdraw the plea of guilty should be denied.
      Although it is undisputed that counsel incorrectly advised the
      defendant that he would not qualify as a career offender, the court
      made clear to the defendant before he pled guilty–and the defendant
      clearly understood–that it was up to the court alone to make the
      sentencing determination, that his counsel had no authority to make
      any promises as to what his sentence would be, that a plea of guilty
      could subject him to a maximum possible punishment of forty years’
      imprisonment, and that he would not have the right to withdraw his
      plea of guilty if the court imposed a sentence with which he did not
      agree. The defendant also clearly understood the provisions of his
      plea agreement and knew there was no promise therein as to what
      advisory guideline range would apply at sentencing. Despite
      knowing all these things, the defendant represented under oath that
      he wanted to plead guilty, that he was voluntarily doing so because
      he was guilty of the offense, and that he was prepared to accept any
      punishment permitted by law that the court saw fit to impose.
      Although the defendant did not delay in filing his motion, and the
      potential inconvenience or prejudice from withdrawal of the plea
      would be considered modest, the court is not persuaded that the
      balance of factors weighs in favor of allowing withdrawal. Taken
      together, the court concludes that the circumstances do not show a
      fair and just reason for withdrawal of the plea of guilty.

Id., Attach. E at 10-11.

      Mr. Gibbs then objected to the PIR, asserting that he was not a career

offender. He also filed a sentencing memorandum arguing that a sentence within

the guidelines range was too harsh and would result in unjust sentencing

disparity. He requested that the district court sentence him to 60 months in


                                          -3-
prison. At the sentencing hearing, the district court considered Mr. Gibbs’

objection to the PIR and his sentencing memorandum. The court concluded,

however, that Mr. Gibbs was a career offender and denied his request for a

sentencing variance. The court sentenced Mr. Gibbs to 188 months in prison, the

low end of the advisory guidelines range. Mr. Gibbs filed a timely notice of

appeal.

                                   II. Discussion

      Under Hahn, we will enforce an appeal waiver if (1) “the disputed appeal

falls within the scope of the waiver of appellate rights”; (2) “the defendant

knowingly and voluntarily waived his appellate rights”; and (3) “enforcing the

waiver would [not] result in a miscarriage of justice.” 359 F.3d at 1325.

Mr. Gibbs contends that his appeal does not fall within the scope of his appellate

waiver, that his waiver was not knowing and voluntary, and that enforcing the

waiver would result in a miscarriage of justice.

      A. Scope of the Waiver

      Mr. Gibbs argues that his appeal does not fall within the scope of the

waiver of his appellate rights because the waiver provision does not preclude an

appeal from the denial of a motion to withdraw a guilty plea filed and heard prior

to sentencing. We disagree. The language of the appeal waiver is broad and

states that Mr. Gibbs is “waiv[ing] any right to appeal . . . any matter in

connection with this prosecution, conviction and sentence.” Mot., Attach. A at 5,

                                          -4-
¶10. We have held that “‘an appeal of a denial of a motion to withdraw a guilty

plea is an attempt to contest a conviction on appeal and thus falls within the plain

language of [an appeal] waiver provision.’” United States v. Leon, 476 F.3d 829,

832 (10th Cir. 2007) (quoting United States v. Elliott, 264 F.3d 1171, 1174

(10th Cir. 2001)). Accordingly, Mr. Gibbs’ appeal falls within the scope of his

appellate waiver.

      B. Whether the Waiver was Knowing and Voluntary

      In determining whether an appellate waiver is knowing and voluntary, we

first “examine whether the language of the plea agreement states that the

defendant entered the agreement knowingly and voluntarily,” and second, whether

there was “an adequate Federal Rule of Criminal Procedure 11 colloquy.” Hahn,

359 F.3d at 1325. The plea agreement signed by Mr. Gibbs states that he is

“knowingly and voluntarily waiv[ing] any right to appeal . . . any matter in

connection with this prosecution, conviction and sentence.” Mot., Attach. A at 5,

¶10. And during the plea colloquy, when the district court specifically addressed

the appeal waiver, Mr. Gibbs acknowledged that he understood that by pleading

guilty he was waiving all of the arguments he had previously made in his pretrial

motions, and that he was giving up his right to challenge his conviction on appeal.

Id., Attach. B. at 7-8.

      Mr. Gibbs bears the burden of providing “support for the notion that he did

not knowingly and voluntarily enter into his plea agreement.” Hahn, 359 F.3d at

                                         -5-
1329. To do this, he must “present evidence from the record establishing that he

did not understand the waiver.” United States v. Edgar, 348 F.3d 867, 872-73

(10th Cir. 2003). In support of his argument that he did not knowingly and

voluntarily waive his appellate rights, Mr. Gibbs makes the conclusory statement

that “[a] review of the plea agreement and the waiver provisions and the colloquy

with the Court shows there was no knowing and voluntary waiver of Mr. Gibbs’

right to appeal the denial of his motion to withdraw his guilty plea.” Resp. at

10-11. This statement is insufficient to meet Mr. Gibbs’ burden to establish that

his waiver was not knowing and voluntary. He has failed to produce any

“evidence from the record establishing that he did not understand the waiver.”

Edgar, 348 F.3d at 872-873.

      C. Miscarriage of Justice and the Waiver

      We will enforce an appellate waiver unless we find that enforcement

“would constitute a miscarriage of justice.” Hahn, 359 F.3d at 1329. The

miscarriage of justice prong requires defendant to show: (1) his sentence relied

on an impermissible factor such as race; (2) ineffective assistance of counsel in

connection with the negotiation of the waiver rendered the waiver invalid; (3) his

sentence exceeded the statutory maximum; or (4) his appeal waiver is otherwise

unlawful and the error “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Id. at 1327 (quotation omitted). Mr. Gibbs

argues the second and fourth of these requirements, maintaining that he received

                                          -6-
ineffective assistance of counsel in connection with the negotiation of his appeal

waiver and that the waiver is otherwise unlawful.

      1) Ineffective Assistance of Counsel

      In its order denying Mr. Gibbs’ request to set aside his guilty plea, the

district court noted that defense counsel had admitted that “he misadvised

[Mr. Gibbs] that he did not qualify for a career offender enhancement based [on]

a lack of knowledge of the applicable definition of ‘felony.’” Mot., Attach. E at

7. Mr. Gibbs argues that this constitutes ineffective assistance of counsel because

“[c]learly, [he] would not have pled guilty, if he had known that the prior

misdemeanor would make him a career offender and increase his sentence from

60 months to 188 months.” Resp. at 13.

      Mr. Gibbs’ response to the motion to enforce clearly alleges ineffective

assistance of counsel in connection with the appeal waiver. But this appeal is not

the proper vehicle for that challenge, and we decline to reach the merits of the

claim. Such a claim must be raised by motion under 28 U.S.C. § 2255 rather than

by 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) (citing Hahn, 359 F.3d at 1327

n.13); see also United States v. Edgar, 348 F.3d at 869 (stating that we have

followed practice of requiring that ineffective-assistance-of-counsel claims be

brought in collateral proceeding, “even when the issues on direct appeal are

                                         -7-
sufficiently developed for us to pass judgment, reasoning that we benefit from the

views of the district court regarding such claims”). We note that Mr. Gibbs’s plea

agreement also waived collateral review, but that waiver will not bar an

ineffective assistance claim relating to negotiations leading to the waiver itself.

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

      2) Waiver is Otherwise Unlawful

      Mr. Gibbs argues that his waiver is otherwise unlawful because he “did not

receive the concession that he bargained for based upon erroneous advice of

counsel.” Resp. at 14. This is not an accurate representation of the record

because Mr. Gibbs was never guaranteed that he would receive the 60-month

statutory minimum sentence in exchange for agreeing to plead guilty and entering

into a plea agreement that included an appellate waiver. His plea agreement sets

forth the following regarding the concessions he was to receive in exchange for

his guilty plea:

      In return for the defendant’s plea of guilty . . . the United States
      Attorney for the District of Kansas agrees:

      a.     To not file any additional charges against the defendant arising out of
             the facts forming the basis for the present indictment;

      b.     To dismiss the Information previously filed pursuant to Title 21,
             U.S.C. § 851;

      c.     To recommend the defendant receive a two (2) level reduction in the
             applicable offense level under U.S.S.G. § 3E1.1 for acceptance of
             responsibility. In addition, the United States will move at the time of
             sentencing for the defendant to receive an additional one (1) level

                                          -8-
              reduction for acceptance of responsibility because the defendant
              timely notified the government of his intention to enter a plea of
              guilty. . . .

       d.     To not request an upward departure from the applicable sentencing
              guideline range if the defendant agrees not to request a downward
              departure.

Mot., Attach. A at 2-3, ¶4. Mr. Gibbs has not argued that he failed to receive any

of the above listed concessions, and there is no concession here that guarantees

the length of his sentence. Accordingly, he has failed to establish that he did not

receive a concession that he bargained for in exchange for giving up his appellate

rights. Enforcing the appellate waiver would therefore not result in a miscarriage

of justice.

       The motion to enforce plea agreement is GRANTED and the appeal is

DISMISSED.



                                        ENTERED FOR THE COURT
                                        PER CURIAM




                                          -9-
