                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 7, 2008
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                       No. 07-2102
 HUGO SNYDER-AGUIRRE,                             (D.C. No. 05-CR-1612-BB)
                                                          (D.N.M.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before O’BRIEN, BALDOCK, and McCONNELL, Circuit Judges.


                                          I.

      Defendant Hugo Snyder-Aguirre was indicted on, among other things, one

count of illegal reentry of a previously deported alien in violation of 8 U.S.C.

§ 1326(a)(1), and one count of assaulting a federal officer in violation of 18 U.S.C.

§ 111(a)(1). Prior to the scheduled trial, Defendant’s third appointed counsel (in the

course of nine months) moved the district court for permission to file a motion in

limine which Defendant prepared himself and insisted on presenting to the Court.

Defendant’s proffered motion suggested the Government denied him due process of



      *
         This order and judgment is not binding precedent except under the doctrines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.
law in the context of his anticipated civil deportation proceeding, which, in turn,

tainted his criminal prosecution. Following the district court’s denial of Defendant’s

motion in limine, Defendant entered a conditional guilty plea to the two

aforementioned counts. See Fed. R. Crim. P. 11(a)(2). Defendant pled guilty subject

only to the reservation in a plea agreement of (1) his right to appeal the denial of his

motion in limine and (2) his right to collaterally attack his conviction based on

ineffective assistance of counsel. The district court sentenced Defendant to seventy

months imprisonment, and he appealed. On appeal, Defendant – now represented by

a fourth appointed counsel – argues (1) the district court denied him the right to

proceed pro se at the motion in limine hearing, and (2) his counsel was ineffective

in performing a “hybrid representation” at the hearing which did not allow a full

exposition of Defendant’s arguments, both in violation of his Sixth Amendment

rights. We dismiss Defendant’s appeal.

                                          II.

      Generally, a defendant who has acknowledged in open court that he is in fact

guilty of the offense with which he is charged may not thereafter raise independent

claims relating to the deprivation of constitutional rights occurring prior to the entry

of his guilty plea:

      “[A] guilty plea represents a break in the chain of events which has
      preceded it in the criminal process. When a criminal defendant has
      solemnly admitted in open court that he is in fact guilty of the offense
      with which he is charged, he may not thereafter raise independent
      claims relating to the deprivation of constitutional rights that occurred

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      prior to the entry of the guilty plea. He may only attack the voluntary
      and intelligent character of the guilty plea by showing that the advice
      he received from counsel was not [competent]”

United States v. Salazar, 323 F.3d 852, 856 (10th Cir. 2003) (quoting Tollett v.

Henderson, 411 U.S. 258, 267 (1973)).          Under Fed. R. Crim. P. 11(a)(2), a

defendant, with the consent of the Government and district court, may enter a

conditional guilty plea, reserving in writing the right to have us review an adverse

determination of a specified pretrial motion. See United States v. Anderson, 374

F.3d 955, 957 (10th Cir. 2004). The question in this case is whether Defendant’s

reservation of his right to appeal the denial of his motion in limine extends to his

Sixth Amendment arguments. In other words, Defendant may advance his Sixth

Amendment arguments only if he did not waive them by pleading guilty. In deciding

this question, we ask “(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).

                                        III.

      In his opening brief, Defendant only obliquely touches upon the substantive

merits of his motion in limine for the obvious reason that his motion was meritless.

Nor does he assert that his waiver of his appellate rights as part of his guilty plea

was unknowing or involuntary. Instead, Defendant claims he was deprived of his

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Sixth Amendment right to the assistance of counsel. But Defendant did not reserve

the right to appeal the denial of this Sixth Amendment rights. The arguments which

Defendant presents to us on appeal simply have nothing to do with the merits of his

motion in limine. If Defendant’s counsel got stuck in a “hybrid representation”

situation to Defendant’s detriment, if counsel failed to present evidence favorable to

Defendant, or if counsel failed to properly argue Defendant’s motion in limine,

Defendant may raise those claims, consistent with the terms of his plea agreement,

on collateral review pursuant to 28 U.S.C. § 2255. See United States v. Galloway,

56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). No miscarriage of justice could

possibly occur by our failure to address Defendant’s Sixth Amendment arguments

at this stage.

       APPEAL DISMISSED.



                                       Entered for the Court,



                                       Bobby R. Baldock
                                       United States Circuit Judge




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