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

                             FOR THE TENTH CIRCUIT                          June 28, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-2048
                                                 (D.C. No. 1:07-CR-02251-MV-1)
EVELYNE JAMES,                                              (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

      Evelyne James, a federal prisoner sentenced to 25 years’ imprisonment after

pleading guilty to voluntary manslaughter of a child, appeals from the district court’s

denial of her request to withdraw her plea. The government has filed a motion to

enforce the appeal waiver included in her plea agreement. We grant the motion and

dismiss this appeal.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Some procedural history will put the motion in context. Ms. James entered her

plea, pursuant to the agreement now invoked by the government, in May 2012. In

exchange for her plea, the government dismissed a first-degree murder charge and

stipulated to a sentence between 25 and 27 years for voluntary manslaughter. The

agreement states that Ms. James “knowingly waives the right to appeal her conviction

and any sentence in this case, except to the extent, if any, that the Court may impose

a sentence that differs from that agreed to by the parties under Federal Rule of

Criminal Procedure 11(c)(1)(C).” Mot. to Enforce, Ex. 1 at 6. She also waived her

“right to collaterally attack any sentence imposed in [the] case except on the grounds

of ineffective assistance of counsel.” Id. at 7.

      Three weeks later, but before sentencing, Ms. James sent a letter to the district

court seeking to withdraw her plea and to obtain substitute counsel. The court denied

the requests, sentenced her to a 25-year term, and entered judgment. No appeal

followed.

      Ms. James later filed a motion for relief under 28 U.S.C. § 2255 arguing,

among other things, that her counsel had rendered ineffective assistance by failing to

take an appeal from the denial of her request to withdraw her plea. The government

opposed this claim in part on the basis that her appeal waiver undercut any prejudice

from this omission. It also eventually filed a motion to enforce the waiver. Acting

on the magistrate judge’s recommendation, the district court granted relief on the

ineffective-assistance claim. The court vacated and reinstated its prior judgment to

give Ms. James the opportunity to perfect the appeal counsel had forgone, and also

                                            2
denied the government’s motion to enforce the appeal waiver as premature. When

Ms. James did file the appeal, the government filed with this court the instant motion

to enforce the appeal waiver.

       The government’s motion argues that the waiver applies to this appeal, that it

was knowing and voluntary, and that there are no circumstances evident on the record

to suggest that enforcement of the waiver would give rise to a miscarriage of justice.

See generally United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc)

(per curiam) (summarizing three components of court’s inquiry when enforcing

appeal waiver). Ms. James disputes all three points and also contends that the

government has forfeited the right to enforce the appeal waiver. We begin with the

last point.

              I. GOVERNMENT FORFEITURE OF APPEAL WAIVER

       Ms. James argues that the government forfeited its right to enforce the appeal

waiver by failing to assert the waiver in timely fashion in response to her § 2255

motion. But that motion and this appeal are two distinct proceedings implicating

different waiver provisions in the plea agreement. And, as noted above, the waiver

provision limiting the right to seek collateral review specifically excepts claims of

ineffective assistance of counsel. Thus, the appeal waiver now at issue was not

previously available (as the district court recognized in denying the government’s

prior motion to enforce as premature), and the collateral-review waiver that was

available below was not applicable to the ineffective-assistance claim.



                                           3
      Nor can the government be deemed to have forfeited the appeal waiver through

delay in invoking it in opposition to Ms. James’ § 2255 motion, on the theory that the

waiver would have conclusively undercut her claim seeking a delayed direct appeal

based on counsel’s failure to perfect a timely one. Because appeal waivers are not

always enforceable (and can be forfeited even when otherwise applicable), we have

held that such delayed-appeal claims are not defeated by the existence of waivers that

the government could seek to enforce once the appeal is brought. See United States

v. Garrett, 402 F.3d 1262, 1266-67 (10th Cir. 2005); see also United States v.

Parker, 720 F.3d 781, 786 & n.6 (10th Cir. 2013). In sum, the appropriate time for

the government to enforce Ms. James’ appeal waiver is now.

                 II. ENFORCEABILITY OF APPEAL WAIVER

A. Scope of the Waiver

      Ms. James argues that this appeal falls outside the waiver because she “is not

appealing her sentence, rather, she is appealing the denial of her motion to withdraw

her plea.” Resp. to Mot. to Enforce (Resp.) at 6. But her waiver also covered the

right to appeal her conviction, and this court explained some time ago “‘that an

appeal of a denial of a motion to withdraw a guilty plea is an attempt to contest a

conviction on appeal and thus falls within the plain language of an appeal waiver

provision.’” United States v. Leon, 476 F.3d 829, 832 (10th Cir. 2007) (per curiam)

(brackets omitted) (quoting United States v. Elliott, 264 F.3d 1171, 1174 (10th Cir.

2001)). Ms. James contends the appeal waiver at issue in Elliott (she does not

mention Leon) was broader in some respects than her waiver, but the material point is

                                           4
that she waived the right to appeal her conviction and, under our case law, that is

precisely what she is attempting to do.

B. Knowing and Voluntary Waiver

      Ms. James also argues that her plea, and by extension her appeal waiver, was

not knowing and voluntary. See generally United States v. Rollings, 751 F.3d 1183,

1186 (10th Cir. 2014) (“[I]n determining whether an appellate waiver is knowing and

voluntary [and thus enforceable] under Hahn, we may consider whether the entire

plea agreement, including the plea, was entered knowingly and voluntarily.”). The

defendant bears the burden of establishing that an appeal waiver was not knowing

and voluntary. Id. at 1187. In resolving this issue, we consider “whether the

language of the plea agreement states that the defendant entered the agreement

knowingly and voluntarily” and “whether there was an adequate Federal Rule of

Criminal Procedure 11 colloquy.” Id. at 1188 (internal quotation marks omitted).

      We have reviewed these sources and agree with the government that they fully

support the knowing and voluntary nature of Ms. James’ plea and appeal waiver.

See United States v. Tanner, 721 F.3d 1231, 1234 (10th Cir. 2013) (per

curiam) (noting synergistic effect of representations in plea agreement and colloquy

“will often be conclusive” in showing appeal waiver to be knowing and voluntary).

Ms. James objects that her short, mostly yes-or-no type responses during the colloquy

did not reflect a “serious interactive dialogue with the Court.” Resp. at 11. But

“‘[t]here is no requirement that in order to rely on a defendant’s answer in a

guilty-plea colloquy to conclude that the defendant pleaded guilty knowingly and

                                           5
voluntarily, those answers must be lengthy and all-encompassing; a straightforward

and simple “Yes, your Honor” is sufficient.’” United States v. Torrellas, 455 F.3d

96, 103 (2d Cir. 2006) (quoting United States v. Gardner, 417 F.3d 541, 544 (6th Cir.

2005)). And the fact that the magistrate judge at one point said to Ms. James “I want

you to breathe for me because I don’t want to see you faint . . . and if you need to sit

down, you let me know,” Resp. at 12 (brackets and internal quotation marks omitted),

does not, as Ms. James suggests, demonstrate that her understanding of the colloquy

was somehow suspect.

      Ms. James further argues that she acted quickly in seeking to withdraw her

plea and that her alacrity supports her allegation that, notwithstanding her contrary

representations on the record, she had not understood the proceedings or the terms of

her agreement. In United States v. Vidakovich, 911 F.2d 435, 439 (10th Cir. 1990),

this court stated that “a swift change of heart,” such as one that takes place within “a

day or so” of a plea, can lend support to a claim that the plea had not been knowing

and voluntary. But Ms. James took over three weeks to act. And her testimony at the

hearing on her motion to withdraw her plea indicates she acted out of second

thoughts about the sentencing range specified in the agreement and on the prompting

of a fellow inmate who told her she should have been offered more plea deals.

See Mot. to Enforce, Ex. 3 at 14-15. Such after-the-fact reassessments do not show

that her plea was unknowing or involuntary when it was made.

      Ms. James contends her letter requesting to withdraw her plea evidences her

lack of understanding of the plea and the pressure imposed by counsel and her own

                                            6
circumstances to agree to it. As for lack of understanding, Ms. James points to a

statement in the letter that counsel “confused [her] by saying he changed [her] plea

from involuntary manslaughter to voluntary manslaughter,” as the latter “carries a

longer term of imprisonment.” Resp., Ex. A at 1. The district court examined

counsel on this point at the hearing prompted by the letter. Counsel explained that

sentencing was of primary importance to both sides, with Ms. James intent on

avoiding a life term. Plea negotiations initially involved offers and counter-offers

regarding the appropriate term of imprisonment. Upon striking the compromise

noted above (between the 20-year offer counsel opened with and the government’s

30-year counter-offer)—which Ms. James specifically accepted—negotiations then

proceeded to specification of an offense that could fit both the sentence and the facts

of the case. When problems with using involuntary manslaughter (initially proposed

for this purpose) were fleshed out, the parties agreed to use voluntary manslaughter

instead. After counsel recounted this negotiation process at the hearing, Ms. James

admitted his testimony did “ring a bell.” Mot. to Enforce, Ex. 3 at 13. These events

may suggest that Ms. James had forgotten, or not fully appreciated, some of the legal

nuances involved in the negotiation process leading to the plea offer she accepted,

but they do not show she did not knowingly enter the plea for the straightforward

sentencing benefit explained by counsel.1



      1
        For the same reason, the fact that the court acknowledged at the hearing that
confusion on Ms. James’ part with respect to the rationale for selecting voluntary
                                                                           (continued)
                                            7
      Ms. James’ letter also stated that counsel had told her “there is and will be

only one plea agreement offered so [she] must sign [what] has been offered.” Resp.,

Ex. A at 1. She cites no authority for the tacit legal premise here that being told

(correctly or not) that a plea offer is the only one forthcoming makes the defendant’s

free acceptance of that offer—for the benefits it undeniably bestows in contrast to the

uncertainties of trial on a far more serious charge—involuntary or unknowing. In

any event, at the hearing counsel denied making such a statement, explaining it

would have been plainly inconsistent with the parties’ open, back-and-forth plea

negotiations that involved multiple offers from the government. When given the

opportunity to respond to counsel’s statements at the hearing, Ms. James declined,

leaving them unchallenged. When opposing a motion to enforce an appeal waiver,

“it is the defendant who bears the burden of demonstrating [her] waiver was not

knowing and voluntary.” United States v. White, 584 F.3d 935, 948 (10th Cir.

2009) (internal quotation marks omitted). Under the circumstances, Ms. James has

not carried that burden on the basis of her allegation that she was told the plea

agreement she accepted was the one and only offer that would be made. Her

associated claim that her plea was involuntary because she felt rushed into it is

inconsistent with her statements on the record at the plea hearing affirming that she




manslaughter would not be surprising, see Resp. at 12-13, does not imply that her
acceptance of the plea was unknowing or involuntary.

                                           8
had had sufficient time to consult with counsel and that no one was pressuring her to

plead guilty.2

      Finally, Ms. James insists an allegation in her § 2255 motion (filed two years

after her plea) further evidences her overall lack of understanding. Specifically,

where the motion form asks why a challenge to her sentence had not previously been

raised on direct appeal, she stated she “did not understand I could appeal.” Resp. at

13 (brackets and internal quotation marks omitted). Leaving aside the conclusory,

collateral, and chronologically remote character of this statement, it does not show

she misunderstood her plea agreement—in particular, the appeal waiver included

therein. To the contrary, it demonstrates a continuing awareness of that waiver. It

would, rather, be of more concern if she indicated that the agreement had not

constrained her right to appeal.

C. Miscarriage of Justice

      Ms. James raises several arguments under the miscarriage-of-justice rubric.

One of these is simply a reassertion of an objection we have already rejected, i.e.,

that it would be a miscarriage of justice to allow the government to enforce the

appeal waiver in the plea agreement, because it has waived its right to do so. The

rest of her arguments are meritless.




      2
        In addition, her suggestion that “memory issues” could have “contributed to
her confusion” in some unspecified way, Resp. at 13, is far too vague and conclusory
to undermine the validity of her plea.

                                           9
       Ms. James contends that “enforcing the waiver with respect to [her] motion to

withdraw [her] plea would amount to forcing upon her a waiver of her right to a

critical part of her sentencing without the requisite explicit knowing and voluntary

relinquishment of that right.” Resp. at 15. If she means, literally, that the waiver

was improperly applied by the district court to the motion to withdraw itself, she is

incorrect. The district court did not refuse to consider the motion on the basis that

such relief had been waived but, rather, denied it on the merits because Ms. James

had failed to demonstrate “any basis for withdrawal of [her] plea agreement.” Mot.

to Enforce, Ex. 3 at 27 (emphasis added). And to the extent she is simply reasserting

her argument that her plea was not knowing and voluntary, we have already held her

showing in that regard is inadequate.3

       Similarly unclear and unsubstantiated is Ms. James’ objection that

“[p]recluding [her] challenge to the district court’s misunderstanding of its discretion

to allow for the plea to be withdrawn is likewise unlawful because it would uphold a

waiver contained in an agreement the district court unlawfully accepted. . . . The


       3
         Her associated statement that “to determine if a waiver is otherwise unlawful
the focus must be on the rights the waiver purportedly relinquishes,” Resp. at 15
(citing United States v. Smith, 500 F.3d 1206, 1212-13 (10th Cir. 2007)), suggests
she may intend to bolster her objection to the appeal waiver by pointing to the fact
that it will result in her losing appellate review of the denial of her motion to
withdraw her plea. If so, her argument stands Smith on its head. In that case we
clarified that the inquiry into the lawfulness of a waiver must focus “on the right
relinquished,” i.e., the right to appeal, and not “the result of the proceeding,” i.e., the
alleged error for which appellate review is sought. Smith, 500 F.3d at 1213. In any
event, Ms. James has not shown that the discretionary denial of her motion to
withdraw her plea remotely approached a miscarriage of justice.

                                            10
error goes to the validity of the waiver.” Resp. at 15. She points to nothing in the

record for her oblique claim that the district court somehow misunderstood its

discretion to allow the withdrawal of her plea. As for her conclusory reference to the

court’s unlawful acceptance of the plea agreement, we have, again, already held that

Ms. James has failed to show that her plea was not knowing and voluntary.

                                III. CONCLUSION

      Ms. James has failed to satisfy her burden of demonstrating that the appeal

waiver in her plea agreement should not be enforced. Accordingly, the government’s

motion is granted and this appeal is dismissed.


                                           Entered for the Court
                                           Per Curiam




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