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

                           FOR THE TENTH CIRCUIT                    September 25, 2015

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

             Plaintiff - Appellee,

v.                                                        No. 15-7040
                                               (D.C. No. 6:12-CR-00065-RAW-6)
ELMER DON WHITTAKER, a/k/a E.D.,                          (E.D. Okla.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before KELLY, BACHARACH, and MORITZ, Circuit Judges.


      Following his acceptance of a plea agreement that included a waiver of his

right to appeal, Elmer Don Whittaker pleaded guilty to maintaining drug-involved

premises, in violation of 21 U.S.C. § 856. He was sentenced to 108 months’

imprisonment. Whittaker filed an appeal, and the government has moved to enforce

Whittaker’s appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328




*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
(10th Cir. 2004) (en banc) (per curiam). We grant the government’s motion and

dismiss the appeal.

                                           I.

        In evaluating a motion to enforce an appeal 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.

        In his plea agreement, Whittaker waived his right to appeal his conviction and

sentence, while reserving the right to appeal a sentence that exceeded the statutory

maximum. Whittaker separately signed the waiver section of the plea agreement,

affirming that his counsel had explained his appellate rights, that he understood those

rights, and that he was knowingly and voluntarily waiving and relinquishing them.

According to his Docketing Statement, Whittaker intends to argue on appeal that

“[t]he Court incorrectly included drug quantities for which this Defendant had not

jointly undertaken the criminal activity of the distribution of the same.” Dock. Stmt.

at 3.

                                           II.

        Shortly after his appeal was docketed, Whittaker’s counsel filed a motion to

withdraw as counsel. The court denied that motion without prejudice because it

failed to satisfy this court’s rules. After the government filed its motion to enforce


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Whittaker’s appeal waiver and ordered Whittaker to file a response, he filed a pro se

Motion for Appointment of Counsel, which the court denied because he was already

represented by counsel. Whittaker then filed two more pro se motions, which the

court construed as seeking reconsideration of its denial of his Motion for

Appointment of Counsel. In these filings, Whittaker asked the court to appoint

replacement counsel, indicating that he and his current counsel were in conflict

regarding his appeal. Whittaker’s pro se motions seeking replacement counsel

remain pending.

      Whittaker’s counsel filed a response to the government’s motion to enforce the

appeal waiver. In that response, counsel stated that he “cannot contest” the motion.

Resp. at 1. He further advised that “[c]ounsel has not identified an arguable appeal

ground outside the scope of the waiver,” id. at 2; that it is “indisputable” that

Whittaker’s appeal waiver was knowing and voluntary, id.; and that counsel cannot

dispute that the record fails to show that enforcement of the appeal waiver will result

in a miscarriage of justice, id. at 2-3. Whittaker’s counsel concluded by stating that

“irreconcilable differences of opinion exist between Whittaker and counsel regarding

his ultimate change of plea and sentence and therefore counsel does not object to

other counsel being appointed to represent Whittaker on the merits of any additional

argument he wishes to submit.” Id. at 3. Whittaker’s counsel has not, however,

renewed his motion to withdraw as counsel.




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       We gave Whittaker an opportunity to file a pro se response to the

government’s motion to enforce his appeal waiver. Regarding his plea agreement,

Whittaker asserts that

       [i]t was affirmatively represented to Elmer Don Whittaker, by [his
       counsel], [that] his Guideline sentence would not exceed thirty-six
       months. [Whittaker’s counsel] then proceeded to encourage Elmer Don
       Whittaker to enter a guilty plea under the government’s plea offer.

             This appellant had no familiarity or knowledge of the federal
       sentencing procedures, including the Sentencing Guidelines. Thus, the
       appellant was forced to rely, exclusively, on the advice and
       recommendation of [his counsel]. That advice was fraudulent, and
       made for the sole purpose of avoiding preparations for a jury trial.

Pro Se Resp. at 1-2.

                                          III.

       Whittaker does not argue that his appeal issue falls outside the scope of the

appeal waiver. Rather, we construe his pro se response as contending (1) that he did

not knowingly and voluntarily enter into his plea agreement, including the appeal

waiver, and (2) that enforcement of his appeal waiver will result in a miscarriage of

justice.

                                           A.

       Whittaker asserts that he entered into the plea agreement in reliance on his

counsel’s false representation that his Guidelines sentence would not exceed

36 months. Whittaker was ultimately sentenced to 108 months’ imprisonment. We

construe this contention as a claim that Whittaker’s plea agreement was not knowing

and voluntary, and therefore his appeal waiver is also invalid. See United States v.

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Rollings, 751 F.3d 1183, 1189 (10th Cir. 2014) (“[I]f the defendant did not

voluntarily enter into the agreement, the appellate waiver subsumed in the agreement

also cannot stand.”), cert. denied, 135 S. Ct. 494 (2014).

      The record does not support Whittaker’s assertion that, in entering into the

plea agreement, he relied on a false representation regarding the sentence he would

receive.

      When determining whether a waiver of appellate rights is knowing and
      voluntary, we especially look to two factors. 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 Criminal Procedure 11 colloquy.

Hahn, 359 F.3d at 1325 (citation omitted). Whittaker affirmed in the plea agreement

that his guilty plea and his appeal waiver were knowing and voluntary. Additionally,

at the change of plea hearing the district court confirmed Whittaker’s understanding

of his appeal waiver and found, based on Whittaker’s testimony, that his plea was

knowing and voluntary.

      More specifically, the plea agreement addressed the applicable maximum term

of imprisonment, but it made no representation regarding the sentence the district

court would impose. The agreement also explicitly stated that it set forth the

complete and only terms of the plea agreement between Whittaker and the

government, and that the written agreement superseded all prior written or oral

understandings. The agreement twice stated that no other promises, inducements,




                                         -5-
understandings, agreements, or predictions had been or would be made regarding his

case or in connection with his plea, except as provided in the written plea agreement.

      During the change of plea hearing, Whittaker indicated his understanding of

the maximum imprisonment sentence. The court then asked the government and

Whittaker’s counsel for their positions on the range of punishment under the

Guidelines. The parties agreed that the estimated Guidelines range was 168 to 210

months’ imprisonment, assuming Whittaker was found to be a career offender, and

before any adjustment for substantial assistance. Whittaker responded that this was

consistent with his understanding of the Guidelines range.

      At the change of plea hearing, Whittaker did not testify that his counsel had

represented that his Guidelines sentence would not exceed 36 months’ imprisonment.

Rather, he affirmatively stated that no one had promised him anything to persuade

him to plead guilty and that no government agent had predicted that he would receive

a lighter sentence if he pled guilty. He stated further that he understood that his

sentence was a matter solely within the control of the sentencing judge and that he

was prepared to accept any punishment permitted by law that the court saw fit to

impose.

      Thus, the record reflects Whittaker’s agreement that no promise was made to

induce him to plead guilty, other than the terms of the written plea agreement, which

did not include any representation regarding a 36-month sentence. We conclude that




                                          -6-
Whittaker has not demonstrated any basis for this court to hold that his guilty plea

was not knowing and voluntary.

                                           B.

      Whittaker may also be arguing that enforcement of his appeal waiver will

result in a miscarriage of justice. We will find a miscarriage of justice only

“[1] where the district court relied on an impermissible factor such as race, [2] where

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

renders the waiver invalid, [3] where the sentence exceeds the statutory maximum, or

[4] where the waiver is otherwise unlawful.” Hahn, 359 F.3d at 1327 (brackets in

original). “This list is exclusive: enforcement of an appellate waiver does not result

in a miscarriage of justice unless enforcement would result in one of the four

situations enumerated above.” United States v. Polly, 630 F.3d 991, 1001 (10th Cir.

2011) (internal quotation marks omitted). Moreover, the defendant has the burden to

demonstrate that enforcement of his appeal waiver would result in a miscarriage of

justice. United States v. Anderson, 374 F.3d 955, 959 (10th Cir. 2004).

      Whittaker does not argue that the district court relied on an impermissible

factor in sentencing him, or that his sentence exceeds the statutory maximum. Nor

does he set forth any basis to conclude that his appeal waiver is otherwise unlawful.

See United States v. Sandoval, 477 F.3d 1204, 1208 (10th Cir. 2007) (stating that

inquiry is “whether the waiver itself is unlawful because of some procedural error or

because no waiver is possible”).


                                          -7-
          Whittaker does assert that he was forced to rely on his counsel’s advice

regarding the sentence the district court would impose and that counsel made the

false representation about a 36-month sentence to avoid having to prepare for a jury

trial. But to the extent Whittaker is asserting that his counsel provided

constitutionally ineffective assistance in connection with the negotiation of his plea

agreement and the appeal waiver, he cannot raise that claim on direct appeal. See

United States v. Edgar, 348 F.3d 867, 869 (10th Cir. 2003) (stating rule, with “rare

exception,” that ineffective-assistance claims must be brought in a collateral

proceeding). “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). This court considers such claims on direct

appeal “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). Whittaker does not claim that he raised this issue in the district

court.1

          We conclude that Whittaker has not demonstrated that enforcement of his

appeal waiver will result in a miscarriage of justice. Our independent review of the

record also confirms that Whittaker’s appeal waiver is enforceable.



1
       In his plea agreement, Whittaker preserved his right to bring a claim in a
collateral proceeding challenging the validity of his guilty plea or his waiver of
appellate and post-conviction rights based on ineffective assistance of counsel.


                                            -8-
                                       IV.

      Accordingly, we grant the government’s motion to enforce Whittaker’s appeal

waiver and dismiss the appeal. We deny Whittaker’s pending pro se motions seeking

replacement counsel.


                                             Entered for the Court
                                             Per Curiam




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