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

                            FOR THE TENTH CIRCUIT                         April 22, 2015

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

             Plaintiff - Appellee,

v.                                                         No. 15-3014
                                                 (D.C. No. 6:14-CR-10101-JTM-1)
STEVEN LEE FRITTS,                                           (D. Kan.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, HARTZ and BACHARACH, Circuit Judges.


      Upon entering into a plea agreement that included an appeal waiver, Steven

Lee Fritts pleaded guilty to being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g). He was sentenced at the low end of the guidelines range to

ninety-two months in prison. Despite the appeal waiver, he appealed. The

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

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


*
       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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
      In evaluating an appeal waiver, Hahn directs us to 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.

      Because Mr. Fritts concedes that his appeal is within the scope of the waiver of

appellate rights, we need not address that factor. See United States v. Porter,

405 F.3d 1136, 1143 (10th Cir. 2005) (recognizing that court need not address each

Hahn factor if defendant does not raise issue relating to that factor).

      Mr. Fritts states that at this time he is not challenging whether his appeal

waiver was knowing and voluntary, but he suggests that he may do so later in a

challenge to the effectiveness of his counsel. As he correctly recognizes, any

ineffective assistance of counsel argument should be raised in a collateral proceeding

under 28 U.S.C. § 2255. See United States v. Galloway, 56 F.3d 1239, 1240

(10th Cir. 1995) (en banc); see also Hahn, 359 F.3d at 1327 n.13 (stating that holding

“does not disturb [the] longstanding rule” of generally considering

ineffective-assistance claims on collateral review).

      Lastly, Mr. Fritts argues that enforcement of the waiver would be a

miscarriage of justice and is otherwise unlawful, because enforcement would

“seriously affect the fairness, integrity or public reputation of judicial proceedings.”

Hahn, 359 F.3d at 1327 (brackets omitted) (internal quotation marks omitted). He

asserts two contentions, both concerning the alleged unlawfulness of his sentence:


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(1) whether it was proper to increase his base offense level by the use of two prior

state convictions for fleeing and eluding law enforcement, when the crimes did not

qualify as crimes of violence; and (2) whether it was proper to impose a two-level

increase for possession of a stolen firearm without proof that he actually knew the

firearm was stolen. These two contentions, however, are not claims concerning the

critical issue of whether Mr. Fritts’ appeal waiver was unlawful. See Porter,

405 F.3d at 1144 (“The relevant question . . . is not whether [defendant’s] sentence is

unlawful . . . , but whether . . . his appeal waiver itself [is] unenforceable.”). Rather,

these contentions are “the logical failing[] of focusing on the result of [the]

proceeding, rather than on the right relinquished, in analyzing whether an appeal

waiver is [valid].” Hahn, 359 F.3d at 1326 & n.12.

       Accordingly, we grant the government’s motion to enforce and dismiss this

appeal, without prejudice to Mr. Fritts raising a claim of ineffective assistance of

counsel in a collateral proceeding.


                                                 Entered for the Court
                                                 Per Curiam




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