                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  January 12, 2011
                            FOR THE TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff!Appellee,

    v.                                                   No. 10-2225
                                               (D.C. No. 2:10-CR-01155-JAP-1)
    JOSE ANTONIO LIMON!PENA,                               (D. N.M.)

                Defendant!Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, MURPHY, and GORSUCH, Circuit Judges.



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

appeal waiver contained in defendant Jose Antonio Limon-Pena’s plea agreement.

The defendant pleaded guilty to re-entry of a removed alien in violation of

8 U.S.C. § 1326(a) and (b). Pursuant to the plea agreement, the defendant waived

his right to appeal his conviction or his sentence, provided his sentence was



*
      This panel has determined unanimously 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 This order and judgment is not binding precedent, except under the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.
within the statutory maximum authorized by law. The defendant was sentenced to

37 months’ imprisonment, which was below the statutory maximum of 20 years’

imprisonment and at the low end of the advisory guideline range of 37 to 41

months’ imprisonment. Nevertheless, the defendant filed a pro se notice of

appeal, claiming the search that led to his arrest was unconstitutional, that his

sentence was unreasonable, and that he received ineffective assistance of counsel.

      The government has filed a motion to enforce the plea agreement pursuant

to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).

In response, the defendant, through counsel, does not assert any reason why the

government’s motion to enforce should not be granted. Instead, counsel requests

that we construe defendant’s notice of appeal as a 28 U.S.C. § 2255 motion to

vacate, set aside, or correct defendant’s sentence, and that we remand the matter

to the district court to consider the notice of appeal as a § 2255 motion.

      We have reviewed the motion, the record and the defendant’s response, and

we conclude that the defendant’s proposed appeal falls within the scope of the

appeal waiver, that he knowingly and voluntarily waived his appellate rights, and

that enforcing the waiver would not result in a miscarriage of justice. See Hahn,

359 F.3d at 1325 (describing the factors this court considers when determining

whether to enforce a waiver of appellate rights). Although the defendant wishes

to raise an ineffective assistance of counsel claim, this claim must ordinarily be

raised in a collateral § 2255 proceeding, rather than on direct appeal. See United

                                          -2-
States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005) (“This rule applies even

where a defendant seeks to invalidate an appellate waiver based on ineffective

assistance of counsel.”). Accordingly, we grant the government’s motion to

enforce the appeal waiver.

      We deny the request to construe defendant’s notice of appeal as a § 2255

and to remand the matter to the district court. First, there is no reason to

recharacterize the notice of appeal; there is no risk at this time that the defendant

will be unable to file a timely § 2255 motion in the district court. Second, a court

may not recharacterize a pro se filing as a § 2255 motion without first warning

the defendant of the potential negative consequences of such recharacterization

and giving him the chance to withdraw the filing should he wish to preserve his

ability to seek habeas relief unimpeded by the restrictions imposed by

28 U.S.C. § 2244(b) at a more opportune time in the future. See Castro v. United

States, 540 U.S. 375, 381-83 (2003). Third, with the exception of his proposed

ineffective assistance of counsel claim, the defendant’s appeal waiver included a

waiver of his right to pursue any collateral attack on his conviction under § 2255.

Mot. to Enforce, Attach. A (Plea Agreement) at 4. The defendant’s plea

agreement waiver did not waive his right to bring a § 2255 motion based on

ineffective assistance of counsel claims that challenge the validity of the plea or

the appeal waiver. See United States v. Cockerham, 237 F.3d 1179, 1187

(10th Cir. 2001); Plea Agreement at 4.

                                          -3-
     Accordingly, we GRANT the motion to enforce the appeal waiver and

DISMISS the appeal.



                                  ENTERED FOR THE COURT
                                  PER CURIAM




                                    -4-
