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

                           FOR THE TENTH CIRCUIT                      December 11, 2012

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

             Plaintiff-Appellee,
                                                          No. 12-2122
v.                                              (D.C. No. 1:11-CR-01877-MV-1)
                                                           (D. N.M.)
DAVID VILLAGRANA,

             Defendant-Appellant.


                           ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, MURPHY and O’BRIEN, Circuit Judges.


      This matter is before the court on the government’s motion to enforce the

appeal waiver contained in defendant David Villagrana’s plea agreement. We grant

the government’s motion and dismiss the appeal.

      Mr. Villagrana pled guilty to possession with intent to distribute cocaine, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). At his change-of-plea hearing, he


*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
confirmed to the district court that the plea agreement had been read to him in

Spanish, he had discussed it with his attorney, his attorney had answered his

questions about it, he had no more questions about it for the court or for his attorney,

he was satisfied with his attorney’s advice and representation, he had no complaints

about his attorney, he was not threatened or coerced into pleading guilty, and he

signed the plea agreement freely and voluntarily. See Aplee. Mot. to Enforce

Appellate Waiver in Plea Agreement, Att. 2, at 13, 26-27, 28-29. The court accepted

his guilty plea and determined that his total offense level was 27, his criminal history

category was I, and the applicable advisory guideline range was 70-87 months in

prison. But Mr. Villagrana was also safety-valve eligible, see 18 U.S.C. § 3553(f);

U.S.S.G. § 5C1.2, and the district court sentenced him to 60 months’ imprisonment,

below the advisory guideline range.

      In his plea agreement, Mr. Villagrana waived his right to appeal his conviction

or his sentence if his sentence was within or below the applicable advisory

sentencing guideline range, as determined by the district court. See Aplee. Mot. to

Enforce Appellate Waiver in Plea Agreement, Att. 1, at 8-9. Nevertheless, he filed a

pro se notice of appeal in the district court. The government filed a motion in this

court to enforce the plea agreement pursuant to United States v. Hahn, 359 F.3d 1315

(10th Cir. 2004) (en banc) (per curiam). Mr. Villagrana’s attorney stated that there

are no non-frivolous arguments that can be presented in response to the motion to




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enforce, citing Anders v. California, 386 U.S. 738, 744 (1967), and filed a motion to

withdraw as counsel.

      We will enforce an appeal waiver as long as three elements are met: (1) “the

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

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

will [not] result in a miscarriage of justice.” Hahn, 359 F.3d at 1325, 1327.

Mr. Villagrana timely filed a pro se response to the government’s motion, raising two

arguments. First, he makes a conclusory argument that his appeal does not fall

within the appeal waiver because he was tricked into pleading guilty by his attorney

and coached as to how to respond to the court during the change-of-plea hearing. He

does not explain further, however, and we are not persuaded that his waiver of his

appeal rights was not knowing and voluntary. His ineffective-assistance claims

should be raised, if at all, in a collateral proceeding under 28 U.S.C. § 2255.

See United States v. Novosel, 481 F.3d 1288, 1294-95 (10th Cir. 2007) (per curiam).

His plea agreement preserves his right to bring a § 2255 motion asserting that his

counsel was ineffective in negotiating or entering the plea agreement or appeal

waiver. Aplee. Mot. to Enforce Appellate Waiver in Plea Agreement, Att. 1, at 9.

      Second, Mr. Villagrana argues that the district court abused its discretion by

not reducing his sentence further below the guideline range on account of his certain

deportation on account of his conviction. But this argument is not only unsupported,




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it also does not relate to the elements we must consider when determining whether to

enforce the appeal waiver.

      Under Anders, we have reviewed the motion and the record, and we conclude

that Mr. Villagrana’s proposed appeal falls within the scope of the appeal waiver,

that he knowingly and voluntarily waived his appellate rights, and that enforcing the

waiver would not result in a miscarriage of justice. See Hahn, 359 F.3d at 1325-27.

      Accordingly, we GRANT the government’s motion to enforce the appeal

waiver, GRANT Mr. Villagrana’s attorney’s motion to withdraw, and DISMISS the

appeal.


                                               Entered for the Court
                                               Per Curiam




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