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

                           FOR THE TENTH CIRCUIT                      December 19, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                         No. 14-3173
                                                (D.C. No. 2:12-CR-20039-KHV-1)
RAMON CHAVEZ, SR.,                                          (D. Kan.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before MATHESON, O’BRIEN, and PHILLIPS, Circuit Judges.


      After entering into a plea agreement that included an appeal waiver, Ramon

Chavez, Sr. pleaded guilty to one count of selling firearms without a license. He was

sentenced to 60 months’ imprisonment. Despite the appeal waiver, Mr. Chavez has

filed a notice of appeal in which he identifies a single issue: “Mr. Chavez wishes to

challenge his conviction and sentence in this case, based on the ineffective assistance

of his counsel.” Dktg. Stmt. at 4. The government has moved to enforce the appeal


*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc)

(per curiam). We grant the motion and dismiss the appeal.

      In evaluating a motion to enforce a waiver 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.”

Id. at 1325.

      In his counseled response opposing the motion to enforce, Mr. Chavez asserts

several arguments, all of which lack merit. First, he argues that the government’s

“motion is not ripe for hearing.” Resp. at 1. Setting aside the lack of any legal

authority to support this argument, we routinely resolve motions to enforce on the

basis of the issues identified in the Docketing Statement. Otherwise, the government

would be put to the task of briefing and thus denied the benefits of the plea

agreement.

      Mr. Chavez’s second argument concerns the scope of the waiver, in which

he maintains that the plea agreement is not as well drafted as it could be and

cautions that “[t]he Government would be well advised to adopt a drafting method

that is used commonly among the most experienced transactional drafters; numbered

sub-paragraphs and true prefatory statements of law.” Id. at 6. Mr. Chavez then lays

out his proposed version of a better-drafted agreement. Without deciding whose draft

is clearer, the relevant point is that the plea agreement is not ambiguous.


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      Next, there is no factual basis to support Mr. Chavez’s statement that the

waiver was not knowing and voluntary because he does not understand English.

Setting aside the fact that an interpreter was available at all times during the plea

hearing and Mr. Chavez declined the court’s offer to use those services, his own

lawyer stated that Mr. Chavez “speaks and understands [English].” Plea Hr’g Tr.

at 15. Nonetheless, Mr. Chavez presses the issue by interpreting the facts to mean

that his “comprehension of even ‘common’ English was in doubt,” and the court was

therefore required to “order that the translator be used in order to fully ensure that the

defendant understood the proceedings against him and the substance of his waiver in

the plea agreement.” Resp. at 9-10. This argument also lacks any legal support.

      In its motion to enforce the appeal waiver, the government argues that

Mr. Chavez cannot circumvent the waiver by raising an ineffective assistance of

counsel claim that is properly raised on collateral review. As we explained in United

States v. Galloway, 56 F.3d 1239, 1249 (10th Cir. 1995) (en banc), “[i]neffective

assistance of counsel claims should be brought in collateral proceedings, not on

direct appeal. Such claims brought on direct appeal are presumptively dismissible,

and virtually all with be dismissed.” As such, we address ineffective assistance

claims on direct appeal only under a narrow set of circumstances, such as when the

ineffective assistance claim is “fully developed on the record.” United States v.

Hamilton, 510 F.3d 1209, 1213 (10th Cir. 2007) (quotations omitted). Although the




                                          -3-
waiver excludes claims of ineffective assistance of counsel, Mr. Chavez did not

reserve the right to raise such claims on direct appeal.

      Nonetheless, and apropos to what we interpret as the miscarriage of justice

factor, Mr. Chavez cites a line of cases that acknowledge the existence of

extraordinary circumstances that may allow a direct appeal of ineffective assistance

of counsel claims. The irrelevance of the exception, however, is obvious in light of

Mr. Chavez’s failure to cite any extraordinary circumstances. Instead, he circles

back to his “ripeness” argument and states that “[u]nless the Government can read

[his] mind, it has absolutely no idea what the basis—factual or legal—may be for

appealing on the grounds of ineffective assistance and so the Government has

absolutely no factual basis in which to root an argument that there are no

‘extraordinary circumstances’ lending themselves to a direct appeal.” Resp. at 12.

But it is Mr. Chavez’s burden, not the government’s, to demonstrate extraordinary

circumstances to justify a direct appeal of ineffective assistance of counsel claims.

See United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005) (recognizing that it

is the defendant’s burden to demonstrate a reason to depart from the general practice

that a defendant must generally raise claims of ineffective assistance counsel on

collateral review).

      Last, Mr. Chavez maintains that enforcement of the plea agreement will result

in a miscarriage of justice because he has no remedy to pursue his ineffective

assistance of counsel claims. As explained above, this is incorrect.


                                          -4-
The motion to enforce is granted, and this appeal is dismissed.


                                        Entered for the Court
                                        Per Curiam




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