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

                           FOR THE TENTH CIRCUIT                         May 9, 2012

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

             Plaintiff-Appellee,

v.                                                        No. 12-5011
                                                (D.C. No. 4:11-CR-00145-CVE-1)
GILBERTO DE LEON HERNANDEZ,                               (N.D. Okla.)
a/k/a Ruben Lozano Trevino, a/k/a Ruben
Lozano-Trevino, a/k/a Ruben Lozano,
a/k/a Luis Garcia-De Leon, a/k/a Gilberto
Deleon Hernandez, a/k/a Gilberto
Hernandez, a/k/a Luis Hernandez,

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before LUCERO, HOLMES, and MATHESON, Circuit Judges.


      After accepting a plea agreement that included a waiver of his right to appeal,

Gilberto De Leon Hernandez pleaded guilty to aggravated identity theft in violation

of 18 U.S.C. § 1028A(a)(1) and (c)(2), and illegal reentry in violation of 8 U.S.C.

*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
§ 1326(a) and (b)(2). Despite the waiver, he filed a notice of intent to appeal. The

government has moved to enforce the appeal waiver. See United States v. Hahn,

359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).

      This court appointed counsel for Mr. Hernandez, and ordered a response to the

government’s motion to enforce. We have reviewed the government’s motion and

Mr. Hernandez’s response, and have also undertaken an independent review of the

plea agreement, change of plea hearing transcript, and sentencing hearing transcript.

We grant the motion to enforce and dismiss the appeal.

      Under Hahn, in evaluating a motion to enforce a waiver, 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.

      Mr. Hernandez concedes that “[i]t would appear that Appellant’s appeal falls

within the scope of the appellate waiver contained in the written plea agreement.”

Resp. at 3. He also admits that both the written plea agreement and “plea colloquy

indicates that Appellant’s waiver was both knowing and voluntary.” Id. at 4.

      However, he asserts a technical deficiency in the colloquy arising from the

district court’s failure to use the words “threats” and “force” in establishing a

voluntary waiver. He cites Fed. R. Crim. P. 11(b)(2), which provides: “Before

accepting a plea of guilty . . . the court must address the defendant personally in open


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court and determine that the plea is voluntary and did not result from force, threats,

or promises (other than promises in a plea agreement).”

        Mr. Hernandez admits that he twice told the district court that he was entering

a guilty plea of his own free will, and that he repeatedly affirmed that his waiver was

voluntary. Nonetheless, he argues that because the court “did not mention the words

“threat or force . . . [the colloquy] may not be considered sufficient to determine

that Appellant’s plea was [] truly entered voluntarily of his own free will.” Resp.

at 5.

        We need not decide whether a defendant’s admission that he is acting of his

own free will is broad enough to obviate the need for the district court to specifically

ask if the guilty plea is a product of “threats” or “force,” because Mr. Hernandez

concedes that the court’s failure to use the words “threats” or “force” was harmless

error because it did not affect a substantial right.

        Fed. R. Crim. P. 11(h) provides: “A variance from the requirements of this

rule is harmless error if it does not affect substantial rights.” “We have construed

th[e] language [in Rule 11(h)] as requiring the defendant to show that knowledge of

the omission or variance from Rule 11 would have changed his decision to plead

guilty.” United States v. Wright, 930 F.2d 808, 810 (10th Cir. 1991) (internal

quotation marks omitted).

        “[A] defendant who receives the information omitted by the district court from

other sources generally cannot demonstrate that he would not have pleaded guilty had


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the court also so informed him.” United States v. Ferrel, 603 F.3d 758, 763

(10th Cir. 2010). The written plea agreement states: “In addition, no one has

threatened or forced me in any way to enter into this agreement.” Plea Agreement at

20. As such, Mr. Hernandez cannot demonstrate that he would not have pleaded

guilty if the court had used the words “threats” and “force” during the change of plea

hearing.

      “The third prong of our enforcement analysis requires the court to determine

whether enforcing the waiver will result in a miscarriage of justice.” Hahn, 359 F.3d

at 1327. One of a handful of exceptions to enforcement is where there has been

ineffective assistance of counsel in negotiating the waiver. Id. Mr. Hernandez

directs our attention to a memorandum he filed in the district court in which

“Appellant alleges ineffective assistance of counsel, apparently in the negotiation of

the plea agreement.” Resp. at 7. We have reviewed the memorandum and can

discern no such argument. In any event, “claims of ineffective assistance of counsel

[are best raised] in a collateral proceeding, not on direct review. 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)

(citation omitted).

      The motion to enforce is GRANTED and this matter is DISMISSED.


                                                ENTERED FOR THE COURT
                                                PER CURIAM


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