                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        August 29, 2018

                                                                          Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                             Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 18-1172

 GIAVANNI EDWARD MILES,
 a/k/a No Lack,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                         (D.C. No. 1:17-CR-00339-PAB-2)
                       _________________________________

Submitted on the briefs:*

Ryan Thomas Truskoski, Ryan Thomas Truskoski, P.A., Las Cruces, New Mexico, for
Defendant-Appellant.

Robert C. Troyer, United States Attorney, Marissa R. Miller, Assistant United States
Attorney, Denver, Colorado, for Plaintiff-Appellee.
                       _________________________________

Before HOLMES, O’BRIEN, and BACHARACH, Circuit Judges.
                  _________________________________

PER CURIAM.


      *
        After examining the briefs and appellate record, 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 matter is before the court on the government’s motion to dismiss

defendant Giavanni Edward Miles’s appeal because it falls within the scope of the

appeal waiver contained in his Plea Agreement. We grant the government’s motion

and dismiss the appeal.

      Miles pleaded guilty to two counts of theft of firearms from a federal firearms

licensee, in violation of 18 U.S.C. § 922(u). He was sentenced to two concurrent

70-month terms of imprisonment. In his Plea Agreement, Miles “knowingly and

voluntarily” waived his right to appeal “any matter in connection with this

prosecution, conviction, or sentence unless it meets one of the following criteria:

(1) the sentence exceeds the maximum penalty provided in the statute of conviction;

(2) the sentence exceeds the applicable advisory guideline range; or (3) the

government appeals the sentence[] imposed.” Mot. to Enforce, Attach. A at 2. The

Plea Agreement further provided: “If any of these three criteria apply, the defendant

may appeal on any ground that is properly available in an appeal that follows a guilty

plea.” Id.

      The government filed a motion to enforce Miles’s appeal waiver under United

States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). In evaluating

a motion to enforce a waiver, we consider: “(1) whether the disputed appeal falls

within the scope of the waiver of appellate rights; (2) whether the defendant




                                           2
knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the

waiver would result in a miscarriage of justice.” Id. at 1325.

      Miles first argues that his appeal waiver is unconscionable and contrary to

public policy because it is one-sided: he waived his right to appeal, but the

government did not. Emphasizing our holding that “contract principles govern plea

agreements,” id. at 1324-25, he asserts that the non-mutual appeal waiver makes his

Plea Agreement an unenforceable adhesion contract.

      We have not addressed this issue, but several other circuits have rejected

Miles’s proposition and similar contentions. In United States v. Powers, 885 F.3d

728, 732-33 (D.C. Cir. 2018), the court held that a plea agreement was not an

unenforceable adhesion contract where it limited the defendant’s, but not the

government’s, appeal rights. The court reasoned that “[a]n appeal waiver . . . gives

the defendant an additional bargaining chip to use in securing a plea agreement with

the government,” and it held that a bargained-for appeal waiver is enforceable

“unless the defendant enters into it unknowingly, unintentionally, or involuntarily.”

Id. (internal quotation marks omitted).

      In United States v. Hare, 269 F.3d 859, 861-62 (7th Cir. 2001), the court

rejected a defendant’s challenge to his appeal waiver as lacking consideration

because the government had not also waived its right to appeal. It held:

      The prosecutor dismissed two out of three counts and promised to
      recommend a lower sentence if certain conditions were met. That’s plenty
      of consideration for [the defendant’s] promises-and contract law does not
      require consideration to be broken down clause-by-clause, with each
      promise matched against a mutual and similar promise by the other side.

                                           3
Id. at 861 (internal quotation marks omitted); see also United States v. Hammond,

742 F.3d 880, 883-84 (9th Cir. 2014) (“[T]he idea behind a plea agreement is that

each side waives certain rights to obtain some benefit. But there are ample reasons

that a defendant might enter a plea agreement short of extinguishing the

government’s right to appeal, including the possibility of a lower sentence and the

dismissal of other charges.” (citation omitted)).

      One circuit construes a defendant’s non-mutual appeal waiver as implicitly

waiving the government’s right to appeal as well. See United States v. Guevara,

941 F.2d 1299, 1299-1300 (4th Cir. 1991) (concluding that to do otherwise was “too

one-sided” and “that such a provision against appeals must also be enforced against

the government, which must be held to have implicitly cast its lot with the district

court, as the defendant explicitly did”). But the same court declined to extend

Guevara to a case where the government had explicitly preserved its right to appeal

in the plea agreement. See United States v. Zuk, 874 F.3d 398, 406-07 (4th Cir.

2017). The court upheld a non-mutual appeal waiver in that context, reasoning:

      [T]o the extent that [the defendant] invites us to extend Guevara and now
      hold for the first time that the waiver of appeal rights must always be
      reciprocal in plea bargaining, regardless of the parties’ desire to negotiate
      otherwise, we decline to do so. It redounds to the benefit of both criminal
      defendants and the government to have flexibility in negotiating the terms
      of plea agreements, including whether the parties will retain their respective
      rights to appeal the district court’s chosen sentence. . . . It is far from clear
      that the government would have elected to strike [the same] bargain—under
      which [the defendant] received a substantial benefit, no matter the outcome
      of this appeal—without [his] express agreement that the United States had
      preserved its right to appeal the district court’s sentencing decision.
      Because there is nothing unconscionable or contrary to public policy in

                                             4
      permitting a criminal defendant and the government to agree to terms where
      the defendant waives his appellate rights and the government does not, we
      refuse to rewrite the parties’ plea agreement in this case by striking the
      provision that allows the government to appeal [the defendant’s] sentence
      . . . . Accordingly, because the plea agreement explicitly preserved the
      government’s appellate rights, we reject [the] argument that this appeal is
      barred by an implied appellate waiver.
Id. at 407-08 (citation and internal quotation marks omitted).

      We agree with our sibling circuits’ reasoning in upholding Miles’s non-mutual

appeal waiver. The government agreed to dismiss two of the four counts in the

indictment, to give Miles full credit for acceptance of responsibility, and to

recommend a sentence at the low end of the guidelines range. Thus, his appeal

waiver is “supported by the overall consideration given for the plea.” Hare, 269 F.3d

at 862. He does not contend that his waiver was unknowing. And he fails to show

that, due to the lack of mutuality in the appeal waiver, his Plea Agreement is

unconscionable, contrary to public policy, or an unenforceable adhesion contract.1

      Miles asserts, alternatively, that he received ineffective assistance of counsel

in the negotiation of his appeal waiver. See Hahn, 359 F.3d at 1327 (holding

enforcement of an appeal waiver results in a miscarriage of justice “where ineffective

assistance of counsel in connection with the negotiation of the waiver renders the

waiver invalid” (internal quotation marks omitted)). But Miles does not develop this

claim in response to the government’s motion, stating it would be “futile” because

“ineffective assistance is not apparent on the face of the record.” Resp. at 4. Instead,


      1
         Miles’s cases—which address one-sided arbitration clauses in commercial
take-it-or-leave-it form contracts—do not inform our analysis.
                                           5
Miles asks this court to “dismiss his appeal without prejudice so he may pursue relief

in the district court,” presumably on an ineffective-assistance claim. Id.

      We decline to do so. As Miles readily acknowledges, “a defendant must

generally raise claims of ineffective assistance of counsel in a collateral proceeding,

not on direct review.” United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005).

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

based on ineffective assistance of counsel.” Id. In his Plea Agreement, Miles

preserved his right to pursue an ineffective-assistance claim in a collateral

proceeding. Thus, Miles may raise his claim in the district court, should he choose

to, in such a collateral proceeding.

      We grant the government’s motion to enforce Miles’s appeal waiver and

dismiss his appeal.




                                           6
