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

                            FOR THE TENTH CIRCUIT                             August 8, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 19-2040
                                                    (D.C. No. 2:16-CR-04290-KG-1)
 IGNACIO SALCIDO, JR.,                                         (D. N.M.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before MATHESON, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

      This matter is before the court on the government’s motion to enforce the

appeal waiver in Ignacio Salcido, Jr.’s plea agreement. Exercising jurisdiction under

28 U.S.C. § 1291, we grant the motion and dismiss the appeal.

                                   BACKGROUND

      Salcido pleaded guilty to transportation of a person under 18 with intent to

engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a). The written plea

agreement provided a detailed advisement about the possible sentences. As pertinent

here, it indicated that Salcido was subject to a statutory mandatory minimum



      *
         This order and judgment is not binding precedent, except under the doctrines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.
sentence of 120 months’ imprisonment but could be sentenced to up to life in prison,

Mot. to Enforce, Attach. 1 at 2, and that the parties had stipulated that 120 to 135

months was the appropriate sentence in this case, id. at 4. The plea agreement also

indicated that Salcido had agreed—with no exceptions—to waive his “right to appeal

[his] conviction[] and any sentence” imposed in compliance with the agreement. Id.

at 8. By signing the written plea agreement, he acknowledged that he was entering

his plea knowingly and voluntarily and that he understood its consequences,

including the statutory minimum and maximum sentences, stipulated sentencing

range, and appeal waiver.

       At the change of plea hearing, Salcido assured the court that he had read and

discussed the plea agreement with counsel before signing it and that he understood its

terms. The court reminded him twice about the appeal waiver, and it confirmed that

he “completely” understood that by accepting the plea agreement he was waiving his

right to appeal. Id. at 21-22, 35. With respect to sentencing, the court reminded

Salcido of the stipulated sentencing range, the 120-month mandatory minimum, and

the possibility that if convicted at trial he could be sentenced to up to the statutory

maximum of life in prison. At every step, Salcido confirmed that he understood the

court’s advisement.

       Although he initially expressed reservations about pleading guilty, he

ultimately assured the court that he had weighed the “pros and cons” and had

concluded that it was “in [his] best interest[s]” to plead guilty, id. at 30, and to accept

“10 to 12 years versus facing 22 years” or more, id. at 19. When the court offered to

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end “this plea hearing, forget about the Plea Agreement, and proceed with [a] trial,”

Salcido declined, reaffirming his desire to accept the terms of the plea agreement. Id.

at 18. And after the prosecutor explained the elements of the offense and outlined the

government’s evidence, Salcido admitted that he was guilty. Based on Salcido’s

responses to the court’s questions and its observations of his demeanor during the

change of plea hearing, the court accepted his plea as having been knowingly and

voluntarily entered.

      The initial presentence report (PSR) indicated that based on the total offense

level and Salcido’s criminal history category the guidelines range under the plea

agreement was 97 to 121 months but that, because the 120-month mandatory

minimum was greater than the minimum of the guidelines range, the effective

guidelines range was 120 to 121 months. The initial PSR calculated that the

guidelines range if Salcido were convicted at trial would be 135 to 168 months. The

government objected to those guidelines calculations, arguing that a two-level

vulnerable victim enhancement applied. The Probation Office agreed and submitted

an amended PSR with adjusted guidelines ranges of 121 to 151 months under the plea

agreement, and 168 to 210 months if Salcido were convicted after trial.

      After the court accepted his plea but before sentencing, Salcido, represented by

substitute court-appointed counsel, moved to withdraw his plea on the grounds that

he had a credible defense, that plea counsel conducted an inadequate pre-trial

investigation, and that he was coerced into pleading guilty by the threat of a potential

life sentence. The judge who ruled on the motion was the same judge who had

                                           3
presided at the change of plea hearing. After a hearing on the motion, the court

rejected each of Salcido’s arguments on the merits and denied the motion, finding

that he failed to show a fair and just reason for his request to withdraw his plea.

See Fed. R. Crim. P. 11(d)(2)(B) (providing that a defendant can withdraw a guilty

plea after entry of the plea but before sentencing if he “can show a fair and just

reason for requesting the withdrawal”).

      At the subsequent sentencing hearing, the court sustained Salcido’s objection

to the vulnerable victim enhancement and adopted a guidelines range of 97 to 121

months, making the effective guidelines range 120 to 121 months. The court then

sentenced Salcido to the statutory minimum term of 120 months’ imprisonment.

                                    DISCUSSION

      “Whether a defendant’s appeal waiver . . . is enforceable is a question of law

we review de novo.” United States v. Ibarra-Coronel, 517 F.3d 1218, 1221

(10th Cir. 2008). In ruling on a motion to enforce, 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.” United States v. Hahn,

359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam).

      Here, Salcido acknowledges that his sentence is within the scope of the appeal

waiver and he does not contend that enforcing it would result in a miscarriage of

justice. Thus, the only question before us is whether his waiver was knowing and

voluntary. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005)

                                            4
(holding that this court need not address a Hahn factor that the defendant does not

contest).

       In determining whether a defendant knowingly and voluntarily waived his

appellate rights, we examine the language of the plea agreement and the adequacy of

the Fed. R. Crim. P. 11 plea colloquy. Hahn, 359 F.3d at 1325. “[I]f the defendant

did not voluntarily enter into the agreement, the appellate waiver subsumed in the

agreement also cannot stand.” United States v. Rollings, 751 F.3d 1183, 1189

(10th Cir. 2014). “[A] properly conducted plea colloquy, particularly one containing

express findings, will, in most cases, be conclusive on the waiver issue, in spite of a

defendant’s post hoc assertions to the contrary.” United States v. Tanner, 721 F.3d

1231, 1233 (10th Cir. 2013) (per curiam). It is Salcido’s burden to “present evidence

establishing that he did not understand the waiver.” United States v. Cudjoe,

634 F.3d 1163, 1166 (10th Cir. 2011).

       Salcido does not claim he did not understand the appeal waiver. Rather,

although he does not seek to withdraw his plea, he claims the plea—not just the

appeal waiver—was not knowing and voluntary because (1) the district court told

him he would receive a life sentence if convicted at trial, and (2) plea counsel was

ineffective.

       The record does not support Salcido’s assertion that the court advised him that

the only option if he were convicted at trial was a life sentence. To the contrary, the

record demonstrates that he was advised both in writing and by plea counsel that if

convicted at trial he “might face a much higher sentence,” Mot. to Enforce, Attach. 2

                                           5
at 6, and that, whether convicted following a jury trial or pursuant to a guilty plea,

the district court had the discretion to determine what the ultimate sentence would be.

When the court asked Salcido whether he understood those advisements, he

repeatedly confirmed that he did. The court then explained that it could reject the

parties’ stipulated sentencing range by refusing to accept the plea agreement, but that

if it accepted the agreement, it was required to impose a sentence within the

stipulated range. Salcido said he understood and that his “hope is that . . . the Court

would approve the agreement so that I can avoid a longer sentence.” Id. at 22.

      Salcido’s reliance on the court’s statement that a life sentence “would be the

consequence for being convicted at trial,” id. at 27, ignores the context of the court’s

statement. At that point in the hearing, Salcido was reiterating that his decision to

plead guilty was motivated primarily by the desire to avoid a lengthy prison sentence.

He explained that he recognized that if convicted at trial, he “face[d] 20, 25 years to

life,” and said the choice between admitting guilt and avoiding a longer prison

sentence “feels” like “coercion.” Id. at 26. Salcido and the court then had the

following exchange:

         THE COURT: Well, if you’re feeling coerced, well, I don’t have to
         accept your plea of guilty. Even if you stand there and say “I'm
         guilty,” if you’re telling me that you were feeling coerced to plead
         guilty, I don’t have to accept it.

         THE DEFENDANT: And I understand that, as well, Your Honor,
         and that creates [an] issue for me, as well, because my -- my hope
         would be that the Court would approve the plea. I’m just trying to
         be as honest to the questions that you’re asking me.



                                            6
           THE COURT: Well, I’m trying to be as plain for you as possible
           and making it as simplistic as possible so that there is no
           confusion. Ultimately, you can decide not to plead guilty.

           THE DEFENDANT: With the -- With the threat imposed, though.

           THE COURT: Well, what would be the threat as you see it?

           THE DEFENDANT: Life sentence, maybe.

           THE COURT: That would be the consequence for being convicted
           at trial.

           THE DEFENDANT: Well, thank you, Your Honor. That clears it
           up.

Id. at 26-27. The court’s statement was thus describing Salcido’s fear that he would

be sentenced to life if convicted at trial, not suggesting that he actually would receive

a life sentence.

       Salcido’s express recognition before this colloquy that he understood his

options—pleading guilty and being sentenced to between 10 and 12 years or

proceeding to trial and facing between 20 years to life—belies his claim that the court

misled him into thinking he would definitely be sentenced to life if convicted after

trial. On this record, we conclude that Salcido’s allegations that he did not

understand his sentencing options are insufficient to overcome his sworn declarations

both in writing and in open court that he did. 1


       1
        The cases Salcido cites to support his argument are inapposite, because they
address Rule 11’s prohibition against judicial involvement in plea negotiations,
which guards against the risk of a court using threats of lengthy sentences to coerce a
defendant to enter into an involuntary guilty plea. See, e.g., United States v.
Cano-Varela, 497 F.3d 1122, 1124, 1135 (10th Cir. 2007) (vacating guilty plea
because district court improperly participated in plea negotiations).
                                            7
      Salcido also claims his plea was involuntary because he received ineffective

assistance of counsel. Specifically, he claims counsel failed to tell him the initial

PSR calculated that the guidelines range if he were convicted at trial would be 135 to

168 months and that he would not have pleaded guilty if he had known the range

could be that low. But it has long been the rule that ineffective-assistance claims

generally should be raised in collateral proceedings under 28 U.S.C. § 2255, not on

direct review. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)

(en banc). “This rule applies even where a defendant seeks to invalidate an appellate

waiver based on ineffective assistance of counsel.” Porter, 405 F.3d at 1144;

see also Hahn, 359 F.3d at 1327 n.13. We thus decline to consider Salcido’s claim.

                                    CONCLUSION

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

and dismiss the appeal.


                                            Entered for the Court
                                            Per Curiam




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