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

                             FOR THE TENTH CIRCUIT                           July 12, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-1175
                                                (D.C. No. 1:15-CR-00206-WJM-2)
DONALD LEONARD RIESTERER,                                   (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, HOLMES, and McHUGH, Circuit Judges.
                  _________________________________

      Pursuant to a plea agreement, Donald Riesterer pled guilty to wire fraud, for

which he received a thirty-month sentence. The agreement included a broad appeal

waiver, encompassing, with few exceptions not relevant here, “any matter in

connection with this prosecution, conviction, or sentence.” Dist. Ct. doc. 158, at 3.

When Mr. Riesterer filed this appeal, the government moved to enforce the waiver.

As explained below, we grant the government’s motion and dismiss the appeal.

We also deny Mr. Riesterer’s request for bail pending appeal as moot.

      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      A little procedural background will frame the issues before us. Mr. Riesterer

executed the plea agreement and entered his plea on August 3, 2016. At that point,

the parties disagreed as to the extent of the losses he had caused, which would affect

his offense level, so the district court scheduled an evidentiary hearing for December

1, 2016. After the hearing, the district court made findings adverse to Mr. Riesterer

regarding the losses. In addition, the court found he had perjured himself and

attempted to influence a testifying witness at the hearing, prompting it to impose a

two-point enhancement to his offense level under United States Sentencing Guideline

Manual (USSG) § 3C1.1 for obstructing or impeding the administration of justice. It

also denied him an offense-level reduction he had sought for acceptance of

responsibility under USSG § 3E1.1.

      Following the entry of final judgment, Mr. Riesterer filed a notice of appeal

and a motion for bail pending appeal. The district court denied the motion for lack of

likely merit to the appeal. It held that Mr. Riesterer had not raised a substantial

question about his conviction or sentence and that, in any event, the appeal waiver in

the plea agreement, which it found valid and enforceable, would likely bar his appeal.

Mr. Riesterer then sought bail from this court. Despite the district court’s focus on

the appeal waiver, Mr. Riesterer mentioned it only once—offhandedly remarking that

the “plea agreement contained a limited appeal waiver,” Mem. in Supp. of Mot. for

Bail (Bail Memo), at 1—and made no attempt to undercut the district court’s

conclusion that it would likely bar his appeal. The government filed a brief in

opposition to the bail motion and moved to enforce the appeal waiver.

                                            2
      The government’s motion to enforce argues that the waiver applies to this

appeal, that it was knowing and voluntary, and that there are no circumstances

evident on the record to suggest that enforcement of the waiver would give rise to a

miscarriage of justice. See generally United States v. Hahn, 359 F.3d 1315, 1325

(10th Cir. 2004) (en banc) (per curiam) (summarizing three components of court’s

inquiry when enforcing appeal waiver). In response to the motion, Mr. Riesterer

does not dispute the first two points, but does argue that enforcement of the appeal

waiver would result in a miscarriage of justice.

      A miscarriage of justice sufficient to invalidate an appeal waiver may be

shown if (1) the district court relied on an impermissible factor, such as race; (2) the

waiver was the result of ineffective assistance of counsel; (3) the district court

imposed a sentence that exceeds the statutory maximum; or (4) the waiver was

otherwise unlawful. United States v. Salas-Garcia, 698 F.3d 1242, 1255 (10th Cir.

2012). Mr. Riesterer invokes the second and fourth grounds to excuse his appeal

waiver.

      As for the second ground, he claims his counsel failed to warn him that the

evidentiary hearing on loss would result in findings that could result in enhanced

penalties and be virtually impossible to challenge, and also misadvised him that he

could withdraw his plea if he was unhappy with the result of the hearing. Without

getting into the merit, if any, of these allegations, we hold they are not appropriate

for resolution on this direct appeal. Claims of ineffective assistance should in almost

all cases be raised in collateral proceedings under 28 U.S.C. § 2255; if “brought on

                                            3
direct appeal [they] are presumptively dismissible, and virtually all will be

dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)

(en banc). In particular, such claims are not available on direct appeal unless they

were “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). “This

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

ineffective assistance of counsel.” United States v. Porter, 405 F.3d 1136, 1144

(10th Cir. 2005). Absent circumstances permitting an ineffective-assistance claim to

be raised on direct appeal—which have not been alleged, much less demonstrated,

here—when such a claim is asserted to circumvent an appeal waiver, the appropriate

course is to dismiss the claim (leaving the appeal waiver in force) without prejudice

to the defendant’s right to pursue it on collateral review under § 2255. See, e.g.,

United States v. Polly, 630 F.3d 991, 1003 (10th Cir. 2011). We follow that course

here.

        As for his contention that the waiver was otherwise unlawful, Mr. Riesterer

objects that the district court failed to warn him that his testimony could subject him

to additional penalties if the court determined that he perjured himself or attempted to

influence the testimony of another witness. This, he claims, “was a clear dereliction

of duty, was patently unjust, and resulted in a miscarriage of justice.” Resp. to Mot.

to Enforce at 3. He cites no authority for his tacit premise that a district court must

specifically admonish a defendant (who has already been placed under oath) that

perjury and witness tampering could result in a sentence enhancement for

                                            4
obstruction. We decline to adopt such a dubious premise—let alone hold that the

absence of such an admonishment constitutes a miscarriage of justice “seriously

affect[ing] the fairness, integrity or public reputation of judicial proceedings” so as to

negate an appeal waiver, Hahn, 359 F.3d at 1327 (internal quotation marks omitted).

On the contrary, it is the effort to obstruct justice that threatens the fairness, integrity

and public reputation of the proceedings.

       Finally, Mr. Riesterer claims “[i]t was procedural error for the district court to

accept the plea agreement and the appeal waiver, but then set an evidentiary hearing

wherein [he] had no choice but to testify as to the appropriate loss amount.” Resp. to

Mot. to Enforce at 5. This alleged error, he contends, “undermined the integrity of

the proceedings and was patently unfair to [him].” Id. Once again, he presents a

perfunctory claim of procedural error without any supporting authority. We are

aware of no legal impediment to the district court proceeding as it did. Indeed,

acceptance of a plea followed by a hearing to determine material sentencing issues is

straightforward practice absent specific stipulations as to sentence in the plea

agreement.

       The government’s motion to enforce Mr. Riesterer’s appeal waiver is granted

and the appeal is dismissed. Mr. Riesterer’s request for release pending appeal is

denied as moot.


                                              Entered for the Court
                                              Per Curiam



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