                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   March 21, 2011
                     UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 09-3305
 FAITH HOPE HAMILTON,                          (D.C. No. 5:02-CR-40157-JAR-8)
                                                           (D. Kan.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and HARTZ, Circuit Judges.


      Defendant Faith Hope Hamilton pled guilty to one count of conspiring to

distribute marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1). She appeals her

sentence, contending the Government breached the plea agreement by failing to file

a motion under U.S.S.G. § 5K1.1 and the district court erred in calculating the drug

quantity attributable to her.      Defendant also argues we should not enforce the

appellate waiver in her plea agreement because of the Government’s alleged breach

and because her counsel provided ineffective assistance in connection with her plea

agreement. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742,



      *
         This order and judgment is not binding precedent except under the doctrines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.
we enforce Defendant’s appellate waiver and dismiss her appeal. See United States

v. Hahn, 359 F.3d 1315, 1322 (10th Cir. 2004) (en banc) (“[W]e have statutory

subject matter jurisdiction under § 1291 over sentencing appeals even when the

defendant has waived [her] right to appeal in an enforceable plea agreement.”).

                                           I.

      A federal grand jury in Kansas indicted Defendant and nine co-defendants on

charges of conspiracy to distribute controlled substances including marijuana.

Defendant agreed to plead guilty to one charge of conspiring to distribute marijuana

in violation of 21 U.S.C. §§ 846 and 841(a)(1). In her plea agreement, she waived

her appellate rights. R.O.A. Vol. I at 44–45. The Government agreed to recommend

certain reductions, not file any additional charges against Defendant arising out of

the factual basis of the indictment, dismiss all prior indictments, and file a motion

asking the district court to reduce Defendant’s sentence if she provided substantial

assistance. 1 Id. at 43. Defendant’s plea petition and plea agreement both include


      1
          The substantial assistance provision of the plea agreement states:

      The defendant acknowledges that substantial assistance has not yet been
      provided by the defendant within the meaning of U.S.S.G. § 5K1.1 and
      Title 18, United States Code § 3553(e). Upon the determination by the
      United States the defendant has provided substantial assistance, the
      United States shall request that the Court consider reducing the sentence
      the defendant would otherwise receive under the applicable statutes
      and/or sentencing guidelines pursuant to Title 18, U.S.C. § 3553(e),
      Title 28, U.S.C. § 994(n), and U.S.S.G § 5K1.1.

                                                                        (continued...)

                                           2
statements affirming that Defendant had reviewed each document with her counsel

and was satisfied with her counsel’s advice and representation. Id. at 31, 46.

      At Defendant’s change of plea hearing, the court explained Defendant’s

appellate rights and asked whether she understood that she was giving them up.

R.O.A. Vol. III at 17–18. Defendant answered in the affirmative. Id. at 18. The

court also explained Defendant’s right to a jury trial and various guidelines that

could apply at sentencing. Id. at 19–27. Defendant affirmed that she and her

counsel had reviewed the factual basis for her plea agreement. Id. at 27–32. After

questioning Defendant at length about her guilty plea, the district court accepted

Defendant’s plea. Id. at 52–53.

      Defendant then filed a pro se letter with the court, informing it that she had

fired her counsel because “[h]e had told me to say yes to things at the last court

proceedings, the signing of the plea.        He also coerced me into signing the

plea . . . . My attorney Eric Johnson did not come to see me or go [over] my rights

or options considering this case.” Supp. R.O.A. I Vol. I at 22. Defendant obtained

new counsel but did not attempt to withdraw or otherwise attack her plea.

      At Defendant’s sentencing hearing, the district court considered Defendant’s

objections but concluded it would sentence Defendant in accordance with the PSR

recommendations and calculations. When the district court asked whether Defendant


      1
      (...continued)
R.O.A. Vol. I at 43.

                                         3
had any further objections, defense counsel said:

      Yes, Judge, to the issue of safety valve. [Defendant] did proffer many
      times with the government, and in addition she gave information that
      apparently was useful in some way to the government helping to
      procure a guilty plea on another codefendant here just recently. The
      government, of course, has the option whether or not to file a 5K1, and
      we understand that, but from all–from information that was exchanged
      between myself and between the government, she did give information
      that was helpful regarding that as well and so we’d just like the
      Court–we’d like to note that for the Court, that she has continued to
      proffer, she has given information at some point that was considered
      useful.

R.O.A. Vol. IV at 78. The Government stated that it had “offered her a 5K and she

didn’t want it,” then explained that after Defendant filed objections to the PSR,

minimizing her role in the conspiracy, it had determined she was not eligible for a

§ 5K1.1 motion. Id. at 79. Upon further questioning by the court, the Government

explained that Defendant had provided substantial assistance but rejected its offer

of a § 5K1.1 motion. Id. at 79–80. Defense counsel countered that the Government

had withdrawn its offer as a result of Defendant’s objections to the PSR. Id. at

80–81. The court concluded these arguments had no bearing on its determination of

Defendant’s eligibility for a safety valve reduction of her sentence and did not

consider further any facts surrounding the Government’s failure to file a § 5K1.1

motion. Id. at 81. Defendant made no other objections. The district court then

sentenced Defendant to 168 months imprisonment and five years of supervised

release.

      Defendant appealed. While this appeal was pending, the Government moved

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to enforce the appellate waiver provision of Defendant’s plea agreement. This

motion was referred to the merits panel. The Government filed a Fed. R. Crim. P.

35(b) motion to reduce Defendant’s sentence with the district court, then moved for

a partial remand so the district court could rule on the motion. We granted the

Government’s motion for a limited remand. On remand, the Government informed

the district court that Defendant had provided substantial assistance and was

therefore entitled to a sentence reduction. The Government explained:

      After much reflection, the Government concedes that it would have
      been appropriate to have filed a 5K1.1 motion recommending reduction
      of the defendant’s sentence in accordance with the terms of the plea
      agreement. As a result of the defendant’s pleading challenging the
      calculations within the PIR, the government believed it was within its
      right to not submit a reduction motion. The government’s decision was
      not designed to foreclose the defendant’s ability to seek a reduction by
      challenging the base offense level and other enhancements, but rather
      a belief, misguided or not, that the defendant was not entitled to
      additional reductions. Again, after reflection, the government must
      remain committed to the plea agreement, and given the defendant’s
      level of cooperation, a reduction in her sentence is warranted.

Supp. R.O.A. II Vol. I at 7 n.2. 2 Before the district court ruled on the Government’s

motion, the Government communicated with defense counsel via email, copying the

district court’s law clerk:

      [T]he Tenth Circuit has remanded the Hamilton appeal so that the
      District Court can address the Rule 35 motion submitted by the
      Government reducing your client’s sentence to 120 months. The Court


      2
        We make no conclusions about the propriety of the Government’s reasoning
in withholding the § 5K1.1 motion or in conceding Defendant was entitled to a
§ 5K1.1 reduction.

                                          5
      has indicated a willingness to sign the proposed Order reflecting that
      reduction. I needed to get your input as to whether a formal hearing
      was needed on this issue.

Id. at 21–22. Defense counsel responded: “I don’t believe a formal hearing is

needed. We’re ok with just having the judge sign the order.” Id. at 21. Thus, the

district court entered the proposed order without a hearing, and Defendant’s sentence

was reduced to 120 months.

      On appeal, Defendant continues to argue the Government should have made

a § 5K1.1 motion before sentencing and, by failing to do so, it breached the plea

agreement. Because of the Government’s breach, or, in the alternative, because of

counsel’s ineffective assistance at the plea stage, Defendant argues we should not

enforce her appellate waiver and should consider her claim that the district court

erred in its calculations of drug quantity attributable to her.

                                           II.

      We will enforce a defendant’s appellate waiver unless the Government

breached the plea agreement. United States v. Trujillo, 537 F.3d 1195, 1200 (10th

Cir. 2008). Thus, we first consider Defendant’s claim that the Government breached

the plea agreement by failing to file a § 5K1.1 motion. In the plea agreement, the

Government agreed to make a reduction motion if it determined Defendant provided

substantial assistance. At Defendant’s initial sentencing, she did not object to the

Government’s failure to file a § 5K1.1 reduction motion. In its Rule 35(b) motion,

the Government conceded Defendant was entitled to a reduction motion for

                                           6
substantial assistance and, as a consequence, it should have filed a § 5K1.1 motion

pursuant to the plea agreement. To remedy that error, the Government filed a Rule

35(b) motion during Defendant’s appeal, likely requesting the same reduction

Defendant would have received pursuant to a § 5K1.1 motion. On remand to the

district court, Defendant declined a hearing on the Rule 35(b) motion, requested that

the district court enter the order sentencing her to 120 months, and made no

objections to her new sentence of 120 months.

      On appeal, Defendant attempts to persuade us that “the Government’s breach

precluded consideration of any of [sic] a sentence less than the statutory mandatory

minimum, or any other of these alternative sentencing options by the district court.”

Appellant Br. at 18. Essentially, Defendant argues the Government’s failure to file

a § 5K1.1 motion deprived her of the opportunity to argue for a sentence of less than

120 months. On the contrary, the text of Rule 35 provides: “When acting under

Rule 35(b), the court may reduce the sentence to a level below the minimum sentence

established by statute.” Fed. R. Crim. P. 35(b)(4). Just as Defendant could have

argued for such a reduction if the Government had made a § 5K1.1 motion, she could

have requested a formal hearing and made such arguments before the district court

when it considered the Government’s Rule 35(b) motion. Instead, she declined a

hearing, made no objections, and accepted a reduced sentence of 120 months. By

doing so, Defendant waived any objections she may have had to her reduced

sentenced based on the Government’s substantial assistance motion. See United

                                         7
States v. Mancera-Perez, 505 F.3d 1054, 1058–59 (10th Cir. 2007) (concluding that

the defendant invited and waived any error when he made no arguments about the

reasonableness of his sentence before the district court and affirmatively endorsed

the length of his sentence); United States v. Carrasco-Salazar, 494 F.3d 1270, 1272

(10th Cir. 2007) (explaining that because the defendant stated that his prior objection

to his sentence had been resolved, he waived that objection). Defendant’s actions

through her counsel below indicated that she was satisfied with her sentence of 120

months. 3 Thus, Defendant received precisely what she wanted: a 120 month sentence

reflecting her substantial assistance and the opportunity to argue for a sentence even

lower than 120 months, which she affirmatively declined. We, therefore, will not

review even for plain error the § 5K1.1 issue Defendant raises about her sentence.

See Puckett v. United States, 129 S. Ct. 1423, 1428–29 (2009) (explaining that

forfeited claims of error may be reviewable under plain error but waived errors are

not); United States v. Olano, 507 U.S. 725, 732–34 (1993) (explaining that courts

review for plain error only errors which were not waived). Accordingly, we will

enforce Defendant’s appellate waiver unless we conclude it is unenforceable under

Hahn, 359 F.3d 1315.




      3
       We note that Defendant has not argued the counsel who represented her on
remand was ineffective. Her ineffective assistance of counsel claims relate only to
the counsel who represented her during her change of plea hearing.

                                          8
                                        III.

      In Hahn, we explained that when considering whether to enforce an appellate

waiver in a plea agreement, we must determine: “(1) whether the disputed appeal

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

knowingly and voluntarily waived [her] appellate rights; and (3) whether enforcing

the waiver would result in a miscarriage of justice.” Hahn, 359 F.3d at 1325.

Defendant concedes her appeal falls within the scope of her appellate waiver.

Appellant Br. at 27.

      Thus, we consider whether Defendant knowingly and voluntarily waived her

appellate rights, looking at two factors: (1) “whether the language of the plea

agreement states that the defendant entered the agreement knowingly and

voluntarily” and (2) whether the Fed. R. Crim. P. 11 plea colloquy was adequate.

Hahn, 359 F.3d at 1325. Defendant states she “does not claim . . . that the district

court failed to comply with Fed. R. Crim. P. 11(b)(1)(N)[] during the change of plea

hearing.” Appellant Br. at 27. Rather, she argues her appellate waiver was not

knowing and voluntary because her counsel provided ineffective assistance during

plea negotiations and the change of plea hearing. Defendant’s plea agreement in this

case states that she “knowingly and voluntarily waives any right to appeal or

collaterally attack any matter in connection with this prosecution, conviction and

sentence.” R.O.A. Vol. I at 44. At the plea colloquy, the district court explained

Defendant’s offense, her right to a jury trial, the process of sentencing, and

                                         9
Defendant’s appellate rights as well as her appellate waiver, and Defendant

expressed that she understood. R.O.A. Vol. III at 17–27. Apart from Defendant’s

arguments about ineffective assistance of counsel, we see no reason to conclude her

appellate waiver was not knowing and voluntary.

      Under the third Hahn prong, a miscarriage of justice results if “‘ineffective

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

waiver invalid.’” Hahn, 359 F.3d at 1327 (quoting United States v. Elliott, 264 F.3d

1171, 1173 (10th Cir. 2001)). We have noted this means “a waiver may not be used

to . . . deny review of a claim that the agreement was entered into with ineffective

assistance of counsel.” United States v. Black, 201 F.3d 1296, 1301 (10th Cir.

2000). Indeed, the appellate waiver specifically excepts motions allowed under

United States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001), which include a claim

that a defendant entered into a plea agreement with ineffective assistance of counsel.

Id. at 1182; R.O.A. Vol. I at 45. As Defendant notes, however, we generally do not

consider ineffective assistance of counsel claims on direct appeal. United States v.

Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005). Indeed, though ineffective

assistance of counsel in connection with the negotiation of an appellate waiver is one

of the reasons we will decline to enforce such an appellate waiver, we do not decide

ineffective assistance of counsel claims on direct appeal except in rare

circumstances, where the issue was raised and ruled upon by the district court and

where there is a record sufficient for us to review on direct appeal. See United

                                         10
States v. Rodriguez-Rivera, 518 F.3d 1208, 1216 (10th Cir. 2008) (addressing a

defendant’s claim of ineffective assistance of counsel because the district court had

ruled on the issue and the record was sufficient for review); United States v. Edgar,

348 F.3d 867, 869 (10th Cir. 2003) (declining to address a defendant’s claim of

ineffective assistance of counsel in connection with plea negotiations on direct

appeal).

          We note that Defendant fired her first counsel and obtained other counsel after

the plea hearing. Defendant made no attempt to withdraw her guilty plea on the

basis that her counsel at the change of plea hearing was ineffective. Thus, the

district court never had the opportunity to consider Defendant’s ineffective

assistance of counsel allegations. The only record evidence concerning this alleged

ineffective assistance is a letter from Defendant to the district court in which she

states:

          I’m writing this letter to inform you that I have fired Attorney Eric
          Johnson and hired Attorney Melinda Clark-Sann to replace Eric Johnson
          [due] to being misrepresented. . . . [Johnson] had told me to say yes to
          things at the last court proceedings, the signing of the plea. He also
          coerced me into signing the plea. I understand now, that I have a right
          to take it to trial.

Supp. R.O.A. I Vol. I at 22. Defendant has not initiated collateral proceedings or

attacked her plea agreement on ineffective assistance of counsel grounds.             In

addition, Defendant’s plea petition and plea agreement both state her satisfaction

with her counsel’s performance. R.O.A. Vol. I at 31, 46. For these reasons, we


                                             11
decline to consider Defendant’s ineffective assistance of counsel claims on direct

appeal. She makes no other arguments concerning the miscarriage of justice prong.

Thus, we enforce Defendant’s appellate waiver, dismiss her direct appeal, and do not

consider her arguments concerning the district court’s calculation of the drug

quantity for which she is responsible. See Edgar, 348 F.3d at 869 (refusing to

consider a defendant’s arguments about ineffective assistance of counsel in

connection with his appellate waiver).

      Accordingly, Defendant’s appeal is DISMISSED.



                                         Entered for the Court,



                                         Bobby R. Baldock
                                         United States Circuit Judge




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