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

                            FOR THE TENTH CIRCUIT                            April 17, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 19-1483
                                                   (D.C. No. 1:19-CR-00094-REB-1)
 ALEXANDER REOSLE SMITH,                                       (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before EID, KELLY, and CARSON, Circuit Judges.
                    _________________________________

      Alexander Reosle Smith pled guilty to one count of possession of ammunition

by a prohibited person, in violation of 18 U.S.C. § 922(g)(1). Mr. Smith’s plea

agreement contained a broad waiver of his right to appeal his sentence. Despite this

waiver, Mr. Smith seeks to appeal his sentence and the manner in which it was

imposed. The government has filed a motion seeking to enforce the appeal waiver in

Mr. Smith’s plea agreement under United States v. Hahn, 359 F.3d 1315, 1328

(10th Cir. 2004) (en banc) (per curiam). We grant the government’s motion and

dismiss the appeal.



      *
         This order and judgment is not binding precedent, except under the doctrines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. Background

      The district court sentenced Mr. Smith to 30 months in prison. This sentence

was at the low end of the advisory sentencing guidelines range of 30 to 37 months.

The district court also directed that Mr. Smith’s sentence “be served consecutively to

any sentence imposed previously or prospectively in any state or federal case,

including any sentence imposed by the District Court in and for the City and County

of Denver, Colorado, in Case Number 17CR8933.” Mot. to Enf., Attach. (Sentencing

Transcript) at 10.

      II. Discussion

      Under Hahn, we consider the following three factors in determining whether to

enforce an appeal waiver in a plea agreement: (1) does the disputed appeal fall

within the scope of the waiver; (2) was the waiver knowing and voluntary; and

(3) would enforcing the waiver result in a miscarriage of justice. 359 F.3d at 1325.

Mr. Smith does not assert that his appeal is outside the scope of his appeal waiver, so

we need not address that factor, see United States v. Porter, 405 F.3d 1136, 1143

(10th Cir. 2005). He argues that his waiver was not knowing and voluntary and that

enforcing the waiver would result in a miscarriage of justice.

      A. Knowing and Voluntary

      We look to two factors when determining whether a waiver of appellate rights

is knowing and voluntary. Hahn, 359 F.3d at 1325. “First, we examine whether the

language of the plea agreement states that the defendant entered the agreement

knowingly and voluntarily. Second, we look for an adequate Federal Rule of

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Criminal Procedure 11 colloquy.” Id. (citation omitted). “The defendant has the

burden to prove that he did not knowingly and voluntarily enter into his plea

agreement.” United States v. Salas-Garcia, 698 F.3d 1242, 1254 (10th Cir. 2012).

      Mr. Smith’s signed plea agreement states that he “knowingly and voluntarily

waive[d] the right to appeal any matter in connection with this prosecution,

conviction, or sentence . . . .” Mot. to Enf., Attach. (Plea Agreement) at 2-3. During

its Rule 11 plea colloquy, the district court reviewed the terms of the plea agreement

with Mr. Smith, including the waiver of his appellate rights. Mr. Smith

acknowledged to the court that he understood his appeal rights and that he understood

and accepted that he was waiving those rights in his plea agreement. The court also

explained that under the terms of the plea agreement, it had the discretion to

determine the sentence in his case. The court further explained “[t]hat means, among

other things, that [the court] will not be bound . . . at your sentencing hearing by what

anyone may have told you, promised you, or predicted for you about the sentence that

[the court] will impose.” Id., Attach. (Change of Plea Transcript) at 21. Mr. Smith

was asked if he understood, and he said yes.

      Mr. Smith now argues that his waiver was not knowing and voluntary because

“[n]either the plea agreement nor the court colloquy informed him of a possibility of

consecutive sentences. And, quite the contrary, his counsel advised him that his

sentences would be concurrent.” Resp. at 3. But a defendant does not need to “know

with specificity the result he forfeits before his waiver is valid.” Hahn, 359 F.3d at

1327. “The law ordinarily considers a waiver knowing, intelligent, and sufficiently

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aware if the defendant fully understands the nature of the right and how it would

likely apply in general in the circumstances—even though the defendant may not

know the specific detailed consequences of invoking it.” Id. (brackets and internal

quotation marks omitted).

      Mr. Smith stated at the change of plea hearing that he understood the district

court had the discretion to impose whatever sentence it considered appropriate and

that he was giving up his right to appeal his sentence. As for counsel advising him

that his sentences would be concurrent, his counsel admitted at sentencing that no

such language appears in the plea agreement. Moreover, Mr. Smith acknowledged at

his change of plea hearing that the district court would not be bound at sentencing by

what anyone may have told him, promised him, or predicted for him about his

sentence. Mr. Smith’s general waiver of his right to appeal his sentence was

knowing and voluntary even if he did not know the specific consequence of invoking

it—i.e, that he was giving up a challenge to the district court’s decision to order his

federal sentence to run consecutively to an anticipated state sentence.

      B. Miscarriage of Justice

      Mr. Smith next argues that enforcing his appeal waiver would result in a

miscarriage of justice. In Hahn, we held that enforcement of an appeal waiver does

not result in a miscarriage of justice unless enforcement would result in one of four

enumerated situations, including “where ineffective assistance of counsel in

connection with the negotiation of the waiver renders the waiver invalid.” 359 F.3d

at 1327 (internal quotation marks omitted). Mr. Smith asserts this situation is present

                                            4
here “because in signing the appeal waiver [he] relied on his counsel’s incorrect

advice that his sentences would be concurrent.” Resp. at 4.

      We make no comment on the merits of Mr. Smith’s claim, but we conclude

that it cannot be raised on direct appeal and therefore it will not prevent enforcement

of the appeal waiver at this stage in the proceedings. In Hahn, we explained that

“[g]enerally, we only consider ineffective assistance of counsel claims on collateral

review.” Hahn, 359 F.3d at 1327 n.13. And we expressly stated that our holding in

Hahn “does not disturb this longstanding rule.” Id. We later reiterated that “[t]his

rule applies even where a defendant seeks to invalidate an appellate waiver based on

ineffective assistance of counsel.” Porter, 405 F.3d at 1144.

      Although Mr. Smith suggests that his claim for ineffective assistance of

counsel should be considered on direct appeal instead of in a collateral proceeding,

we disagree. We have “considered ineffective assistance of counsel claims on direct

appeal in limited circumstances, but only where the issue was raised before and ruled

upon by the district court and a sufficient factual record exists.” United States v.

Flood, 635 F.3d 1255, 1260 (10th Cir. 2011). But the circumstances here do not fall

within the narrow exception to our general rule because the district court did not rule

on the issue.




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      III. Conclusion

      For the foregoing reasons, we grant the government’s motion to enforce and

dismiss this appeal. This dismissal is without prejudice to Mr. Smith filing a

collateral action to bring a claim for ineffective assistance of counsel.


                                             Entered for the Court
                                             Per Curiam




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