                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 8, 2009
                     UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                       No. 08-3000
 CAMILO BENITEZ-DIAZ, also                    (D.C. No. 6:07-CR-10084-WEB-1)
 known as Orlando Sausedo-Ramoz,                          (D. Kan.)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before LUCERO, BALDOCK and MURPHY, Circuit Judges.


      Defendant Camilo Benitez-Diaz pled guilty to distributing methamphetamine,

in violation of 21 U.S.C. § 841(a)(1). See Fed. R. Crim. P. 11(c). He now appeals,

alleging various errors committed by the district court at his plea colloquy and

sentencing hearing, as well as the ineffective assistance of his trial counsel. In

response, the Government requests that we enforce a waiver of appeal included in

Defendant’s plea agreement. Our jurisdiction arises under 28 U.S.C. § 1291. We

enforce the waiver in part and remand for resentencing.



      *
         This order and judgment is not binding precedent except under the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.
                                          I.

      In April 2007, Defendant was charged with four counts of distributing

methamphetamine. In exchange for Defendant’s guilty plea, the Government agreed

to drop the first count in the indictment.      In so doing, Defendant admitted to

knowingly distributing approximately 28 grams of methamphetamine to an

undercover FBI agent on three separate occasions in 2006.

      On August 28, 2007, the district court conducted Defendant’s plea colloquy.

During the colloquy, the district court erroneously described the charges against

Defendant as “possesse[ing]” methamphetamine “with the intent to distribute.”

(emphasis added). In fact, each count in the indictment charged Defendant with

“knowingly, intentionally, and unlawfully distribut[ing] approximately 28 grams of

. . . methamphetamine.” (emphasis added). Neither the Government nor defense

counsel corrected the district court’s mistake. Also at the colloquy, the district court

asked Defendant: “Do you understand by entering a free and voluntary plea of guilty

you may be giving up any right to challenge your conviction upon appeal?”

(emphasis added). Defendant answered “yes” to the district court’s inquiry. In fact,

the waiver in the plea agreement was much broader than the district court’s

description—providing that Defendant waived his “right to appeal or collaterally

attack any matter in connection with [his] prosecution, conviction and sentence.”

(emphasis added). Again, neither the Government nor defense counsel corrected the

                                           2
district court’s misstatement. At the conclusion of the colloquy, the district court

accepted Defendant’s guilty plea. On November 9, 2007, the district court sentenced

Defendant to 108 months imprisonment.

      Defendant appeals, arguing (1) the plea agreement is invalid because the

district court misstated the elements of the charged offenses during the plea

colloquy, (2) the district court erred by not allowing allocution for Defendant during

sentencing, (3) the district court erred by failing to verify that Defendant and his

counsel read and discussed the Presentence Report prior to the sentencing hearing,

and (4) his trial counsel was ineffective.      Following Defendant’s appeal, the

Government filed a motion before this Court to enforce Defendant’s appellate

waiver. See Fed. R. App. P. 27 and 10th Cir. Rule 27.2(A)(1)(d). We first hold that

the district court’s comments during the colloquy narrowed the scope of the waiver.

We then grant in part the Government’s motion to enforce the appellate waiver.

Finally, we remand for proper allocution.

                                         II.

        A defendant can forfeit the right of appeal if he waives that right in an

enforceable plea agreement. See United States v. Smith, 500 F.3d 1206, 1210 (10th

Cir. 2007). We assess the validity of such appellate waivers under the three-pronged

analysis set forth in United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en

banc). Accordingly, we must determine (1) whether the disputed appeal falls within

the scope of the appeal waiver, (2) whether the defendant knowingly and voluntarily

                                          3
waived his right to appeal, and (3) whether enforcement of the waiver would result

in a miscarriage of justice. See id.

                                           A.

         Under the first prong articulated in Hahn, we strictly construe appellate

waivers—resolving any ambiguity in scope in favor of a defendant’s appellate rights.

See id. Moreover, we interpret the waiver according to contract principles and what

the defendant would have reasonably understood when he entered the plea

agreement. See United States v. Arevalo-Jimenez, 372 F.3d 1204, 1206 (10th Cir.

2004).

         Here, Defendant agreed to a very broad waiver of his appellate rights. The

plea agreement states:

               Defendant knowingly and voluntarily waives any right to appeal
               or collaterally attack any matter in connection with this
               prosecution, conviction and sentence. . . . By entering into this
               agreement, the defendant knowingly waives any right to file and
               pursue an appeal of a sentence imposed which is within the
               guideline range determined appropriate by the court. The
               defendant also waives any right to challenge a sentence or
               otherwise attempt to modify or change his sentence in a manner
               in which it was determined in any collateral attack, including, but
               not limited to, a motion brought under Title 28, U.S.C. § 2255
               [except as limited by United States v. Cockerham, 237 F.3d 1179,
               1187 (10th Cir. 2001)], a motion brought under Title 18, U.S.C.
               § 3582(c)(2) and a motion brought under Fed. Rule of Civ. Pro.
               60(b).

Defendant seemingly recognizes that his entire appeal falls within the scope of the

plain language of the plea agreement. He argues, however, that the district court


                                            4
narrowed the scope of the waiver at the plea colloquy in stating: “Do you understand

by entering a free and voluntary plea of guilty you may be giving up any right to

challenge your conviction upon appeal?” (emphasis added). Specifically, Defendant

contends that because the district court only mentioned the right to appeal his

conviction, he is entitled to appeal his sentence.

      As noted, the plain language of the plea agreement is quite clear that the

waiver includes Defendant’s right to appeal his sentence. District courts, however,

are required to “inform the defendant of, and determine that the defendant

understands . . . the terms of any plea-agreement provision waiving the right to

appeal or to collaterally attack the sentence.” Fed. R. Crim. P. 11(b)(1)(N). The

district court’s description of the appellate waiver at the colloquy is decidedly

narrower than the waiver in the plea agreement. The question before us, therefore,

is whether the district court’s mistake created an ambiguity in the waiver’s scope.

      Generally, an ambiguity which might negate a defendant’s prior written waiver

will not arise when a district court’s comments follow the signing and entry of a plea

agreement. See Smith, 500 F.3d at 1211; United States v. Wilken, 498 F.3d 1160,

1167 (10th Cir. 2007); Arevalo-Jimenez, 372 F.3d at 1206. In Wilken, however, we

concluded that an ambiguity may be sufficient to invalidate a waiver if the district

court’s mischaracterization occurs just prior to signing the plea agreement. 498 F.3d

at 1168.    In that case, the district court’s description of the waiver at the

colloquy—immediately before the defendant signed the plea agreement and entered

                                           5
his plea—was narrower than the extent to which the defendant waived the right to

appeal his sentence in the plea agreement. See id.      We reasoned the defendant

“could not be faulted for relying upon the court’s explanation, rather than his own

understanding, as the definitive construction of the agreement he would almost

immediately sign.” Id. Because no clarification was provided for the defendant, nor

an opportunity for defense counsel to clear up the mistake, we held that the waiver

was ambiguous at the time of signing. Id. Ultimately, we resolved the ambiguity in

favor of the defendant and allowed him to appeal his sentence. See id. at 1169.

      Defendant signed the plea agreement the same day as the colloquy, but we

cannot discern from the record whether it was signed immediately before or after the

colloquy. We must, therefore, give Defendant the benefit of the doubt and assume

the agreement was signed just after the colloquy. See Hahn, 359 F.3d at 1325

(noting any ambiguities in determining the waiver’s scope must be resolved in favor

of the defendant).   As in Wilken, we are left with the broad language in the

agreement on the one hand, and the later, narrowing language of the district court on

the other hand. As a result, we must strictly construe the scope of the waiver and

resolve the resulting ambiguity in favor of Defendant. Wilken, 498 F.3d at 1168-69;

Hahn, 359 F.3d at 1325. Accordingly, we conclude that challenges to Defendant’s

conviction are within the scope of the waiver, but not those matters concerning his




                                         6
sentence. 1 Before we address the merits of Defendant’s sentencing appeal, however,

we must return to our Hahn inquiry and determine whether to enforce the waiver in

connection with Defendant’s remaining two arguments, i.e., (1) the plea agreement

is invalid because the district court misstated the elements of the charged offenses

during the plea colloquy, and (2) Defendant’s trial counsel was ineffective. 2

                                        B.

      Under the second prong of Hahn, we are required to “ascertain whether the

defendant knowingly and voluntarily waived his appellate rights.” Id. Two factors

are central to this analysis: (1) the language of the plea agreement, and (2) an

adequate colloquy under Federal Rule of Criminal Procedure 11. See id. Defendant

bears the burden of demonstrating that his waiver was not knowing and voluntary.

See United States v. Ibarra-Coronel, 517 F.3d 1218, 1222 (10th Cir. 2008).

      As previously noted, the language of the plea agreement is very clear

regarding Defendant’s waiver. In the agreement, Defendant swears that he “had

sufficient time to discuss the case, the evidence, and this agreement with [his]


      1
         We emphasize the scope of the waiver must be determined on a case-by-
case basis and is heavily dependent on the particular facts found in the record.
We also note that if the Government or defense counsel clarified the waiver’s
scope at the colloquy or sometime prior to the signing of the agreement, any
potential ambiguity would have been removed. See Wilken, 498 F.3d at 1168.
      2
         Our remaining analysis—the knowing and voluntary nature of the waiver
(Hahn’s second prong) and whether the waiver would result in a miscarriage of
justice (Hahn’s third prong)—only pertains to the waiver of Defendant’s right to
appeal matters in connection with his conviction.

                                         7
attorney and [he] is fully satisfied with the advice and representation provided by

[his] counsel.” Moreover, Defendant “acknowledge[d] that he has read the plea

agreement, understands it and agrees it is true and accurate” and that he “enter[ed]

into this agreement and is pleading guilty because [he] is guilty and is doing so

freely and voluntarily.” Thus, the language of the agreement itself does not raise any

concerns about the knowing and voluntary nature of Defendant’s waiver.

      Likewise, the Rule 11 colloquy was adequate. First, Defendant stated that he

understood by entering a guilty plea he would be giving up the right to challenge his

conviction on appeal. Second, Defendant informed the district court that his guilty

plea was the result of the plea agreement, and he swore that he read, understood, and

discussed the plea agreement with his attorney.       Finally, Defendant’s counsel

confirmed at the colloquy that Defendant “understands he is waiving his right to

appeal and collateral attack by entering into this plea.” Defendant, nevertheless,

argues the waiver was not knowing and voluntary because the district court misstated

the elements of the charged offenses. We disagree.

      First, the district court’s misstatement regarding the charges against Defendant

does not, by itself, invalidate the waiver. See Smith, 500 F.3d at 1213 (noting that

a separate aspect of the proceeding in which the district court commits legal error

does not invalidate a waiver). Thus, allowing the district court’s error in describing

the charged offenses to “render [the] waiver unlawful would nullify the waiver based

on the very sort of claim it was intended to waive.” Id. “The essence of plea

                                          8
agreements . . . is that they represent a bargained-for understanding between the

government and criminal defendants in which each side forgoes certain rights and

assumes certain risks in exchange for a degree of certainty as to the outcome of

criminal matters.” United States v. Porter, 405 F.3d 1136, 1145 (10th Cir. 2005);

see also Ibarra-Coronel, 517 F.3d at 1220, 1223 (holding the district court’s

misstatement that the defendant’s maximum penalty was 120 months incarceration,

when in fact her minimum penalty was 120 months, did not make the waiver

unknowing and involuntary).

      Second, even if the district court’s description of the charges applied to

Defendant’s waiver, the mistake did not render the waiver unknowing and

involuntary. Defendant relies on Hicks v. Franklin, 546 F.3d 1279 (10th Cir. 2008),

for the proposition that we must invalidate the entire plea agreement, including the

waiver. In Hicks, we granted habeas relief to a defendant who previously pled guilty

to second degree murder. Because the trial court failed to explain to the defendant

that a “depraved mind” was an element of murder in the second degree, we held the

defendant’s guilty plea was not knowing and voluntary.         Id. at 1287.   Hicks,

however, is readily distinguishable from this case.

      In Hicks, our ruling was premised on the “clearly established . . . rule that a

defendant must receive notice of all critical elements of the charge to which he

pleads guilty.” Id. at 1284. This rule was particularly significant in Hicks because

the State orally amended the charged offense from first degree to second degree

                                         9
murder at the plea hearing. Id. at 1281. Thus, the only notice available to the

defendant regarding the new charge against him was the trial court’s description—a

description which “entirely omitt[ed] the fact that Oklahoma’s second degree murder

statute contain[ed] a mens rea element.” Id. at 1286.

      In contrast, the charges against Defendant here were spelled out in the

indictment and the plea agreement. Both of these documents gave adequate written

notice of all the critical elements of the charged offenses. Additionally, prior to the

colloquy, Defendant signed a petition offering his “plea of ‘GUILTY’ with full

understanding of all the matters set forth in the Indictment and in this petition.”

Finally, Defendant attested at the colloquy that he understood all the charges set

forth against him in the indictment. Thus, unlike in Hicks, Defendant clearly had

notice of the elements of the charges against him.        Accordingly, we conclude

Defendant’s waiver was knowing and voluntary.

                                          C.

        The third prong of the Hahn analysis requires us to determine whether

enforcement of the waiver would result in a miscarriage of justice. 359 F.3d at 1327.

A miscarriage of justice occurs in one of four scenarios: (1) when the district court

relies on an impermissible factor such as race; (2) when ineffective assistance of

counsel underlies the negotiation of the waiver; (3) when the sentence exceeds the

statutory maximum; or (4) when the waiver is otherwise unlawful. See id. at 1327.

A waiver is otherwise unlawful when it seriously affects the fairness, integrity, or

                                          10
public reputation of judicial proceedings. See id. (citing United States v. Olano, 507

U.S. 725, 732 (1993)).

      The district court did not rely on an impermissible factor and the sentence does

not exceed the statutory maximum. Defendant argues, however, that he received

ineffective assistance of counsel in negotiating the appellate waiver. The rule is well

established, however, that ineffective assistance of counsel claims should be raised

in a collateral proceeding. Porter, 405 F.3d at 1144; United States v. Galloway, 56

F.3d 1239, 1240 (10th Cir. 1995) (en banc) (“Ineffective assistance of counsel

claims should be brought in collateral proceedings, not on direct appeal.”). This

general “rule applies even where a defendant seeks to invalidate an appellate waiver

based on ineffective assistance of counsel.” Porter, 405 F.3d at 1144. Thus, only

in rare instances will we address an ineffective assistance claim on direct appeal.

United States v. Edgar, 348 F.3d 867, 869 (10th Cir. 2003). Neither the record, nor

Defendant’s brief, provide any reason to suggest this case qualifies as one of those

rare exceptions. Accordingly, we conclude Defendant must raise his ineffective

assistance claim in a collateral proceeding.

      Defendant also argues the waiver is otherwise unlawful for the same reasons

discussed supra in Part II.B. Specifically, Defendant contends the district court’s

misstatement of the charged offenses seriously affected the fairness, integrity, and

reputation of judicial proceedings. We disagree. As already noted, the error did not

impact Defendant in any material way. Accordingly, we conclude the waiver would

                                          11
not result in a miscarriage of justice. The Government’s motion to enforce the

waiver is, therefore, granted so far as it pertains to Defendant’s conviction.

                                         III.

      Having determined the appellate waiver does not cover challenges to

Defendant’s sentence, see supra Part II.A, we now turn to Defendant’s sentencing

appeal. Defendant contends the district court erred (1) by failing to provide an

opportunity for allocution at sentencing, and (2) by failing to verify that Defendant

and his counsel read and discussed the Presentence Report (PSR) prior to the

sentencing hearing.

                                         A.

       District courts are required to “address the defendant personally in order to

permit the defendant to speak or present any information to mitigate the sentence.”

Fed. R. Crim. P. 32(i)(4)(A)(ii).     This rule codifies the common law right of

allocution. See United States v. Jarvi, 537 F.3d 1256, 1261 (10th Cir. 2008). A

district court’s failure to comply with this rule is per se prejudicial and requires

remand. See id. at 1262. Defendant argues the district court did not provide an

opportunity for allocution. In response, the Government argues that the following

discourse at sentencing satisfied Rule 32:

                    THE COURT: Any Objection to the proposed sentence by
                    the Government?
                    THE GOVERNMENT: No, your Honor.
                    THE COURT: By the Defendant?
                    DEFENSE COUNSEL: No, sir.

                                          12
                   THE COURT: Did [Defendant] get the word, Ms. Rivera?
                   Any objection to the sentence?
                   DEFENDANT: No.

We agree with Defendant that this exchange does not meet Rule 32 requirements.

      The district court merely asked Defendant whether he had any objection to the

proposed sentence. This question easily could have been interpreted as purely legal

in nature, or requiring a simple yes or no answer. Nowhere did the district court ask

Defendant to make a statement on his own behalf. 3 We acknowledge the district

court addressed Defendant personally (through his translator), as required by Rule

32. See Fed. R. Crim. P. 32(i)(4)(A)(ii). Moreover, we recognize a Defendant’s

right to allocution is not without limits. See United States v. Muniz, 1 F.3d 1018,

1025 (10th Cir. 1993). That said, for us to infer that Defendant realized this limited

inquiry also meant he was permitted to present information for the purpose of

mitigating his sentence requires a significant leap.         See Fed. R. Crim. P.

32(i)(4)(A)(ii); see also Jarvi, 537 F.3d at 1261 (citing Green v. United States, 365


      3
           The Government argues this case is similar to Johnston v. United States,
303 F.2d 343 (10th Cir. 1962), in which the district court asked the defendants:
“Is there any reason why sentence should not be imposed at this time that either
one of you have to present?” Id. at 344. While not a model allocution procedure,
the district court’s question in Johnston likely alerted the defendants of their
opportunity to say something on their behalf about the proposed sentences. In
contrast, the district court’s terse question here—“Any Objection to the proposed
sentence?”—leaves serious doubt as to whether Defendant understood his right to
allocution. See United States v. Gerrow, 232 F.3d 831, 833 (11th Cir. 2000)
(“The district court must clearly inform the defendant of his allocution rights,
leaving no room for doubt that the defendant has been issued a personal invitation
to speak prior to sentencing.”).

                                         13
U.S. 301, 304 (1961)). Accordingly, we conclude Defendant was denied proper

allocution and we remand for resentencing. See id.

                                         B.

      Defendant’s final argument is the district court erred by failing to verify that

he and his counsel read and discussed the PSR prior to the sentencing hearing, as

required by Fed. R. Crim. P. 32(i)(1)(A). See United States v. Romero, 491 F.3d

1173, 1179 (10th Cir. 2007). The Government concedes the district court did not

inquire whether Defendant and his attorney discussed the PSR. Because Defendant

did not object at sentencing, however, we review only for plain error. See United

States v. Mendoza, 543 F.3d 1186, 1190 (10th Cir. 2008). To meet this standard,

Defendant must demonstrate (1) error, (2) that is plain, (3) which affects Defendant’s

substantial rights, and (4) which seriously affects the fairness, integrity, or public

reputation of judicial proceedings. See id.

      Defendant submits no argument that the district court’s error prejudiced him.

Under normal circumstances, that would be the end of the matter. See Romero, 491

F.3d at 1180 (noting remand will not be granted when a district court “fail[s] to

verify that the defendant had the opportunity to read and discuss the PSR” unless the

defendant can “demonstrate prejudice resulting from [the] . . . error”). Because we

are remanding for proper allocution, however, we will allow the district court to

address this issue on remand in accordance with Fed. R. Crim. P. Rule 32(i)(1)(A).




                                         14
                                       IV.

      We grant the Government’s motion to enforce the appellate waiver in part, and

DISMISS Defendant’s appeal as to his conviction. 4 However, because (1) the district

court narrowed the scope of Defendant’s waiver at the plea colloquy, and (2) the

district court committed prejudicial error during sentencing, we REMAND for

further proceedings consistent with this Order and Judgment. 5



                                      Entered for the Court,



                                      Bobby R. Baldock
                                      United States Circuit Judge




      4
        We provide no opinion on the merit of Defendant’s ineffective assistance
of counsel claim, but note that he may pursue such a claim in a collateral
proceeding.
      5
         Following oral argument, Defendant filed an Unopposed Motion to
Correct His Briefs and Modify His Request for Relief. Specifically, Defendant
requested that—if we determined the district court committed reversible error
during the plea colloquy—we vacate the judgment against Defendant and allow
him the opportunity to withdraw his plea on remand. Because we only remand for
the limited purpose of correcting the district court’s sentencing error, and not for
reversible error at the plea colloquy, we deny Defendant’s motion as moot.

                                        15
