FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 17, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 13-2098
(D.C. No. 2:10-CR-01566-WJ-41)
OSIEL CHAVEZ LUJAN, (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before KELLY, LUCERO, and BACHARACH, Circuit Judges.
Osiel Chavez Lujan pled guilty to conspiracy to possess with intent to
distribute five kilograms and more of cocaine. He was sentenced to 180 months’
imprisonment, which was within the advisory guideline sentencing range. In his plea
agreement, Mr. Lujan waived his right to appeal his conviction and sentence. In spite
of this waiver, he filed a notice of appeal. The government has moved to enforce the
*
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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
appeal waiver pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004)
(en banc) (per curiam).
In his response, Mr. Lujan first asserts that the government’s motion is
untimely because it was not filed within 15 days of the notice of appeal. But it
appears he is citing to an outdated version of 10th Cir. R. 27.2(A)(3). The current
version of the rule states: “A motion under 27.2(A)(d)(1) [to enforce an appeal
waiver] must be filed within 20 days after: (i) the district court’s notice . . . that the
record is complete, or; (ii) the district court’s notice that it is transmitting the record
pursuant to 10th Cir. R. 11.2.” 10th Cir. R. 27.2(A)(3)(b). The district court gave
notice that the record was complete on August 9, 2013. The government’s motion to
enforce was filed on August 26, before the 20-day deadline had expired, and
therefore it is timely.
When reviewing 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.” Hahn, 359 F.3d at
1325. Mr. Lujan contends that the issues he seeks to raise on appeal—that his
counsel was ineffective and he was denied counsel of his choice—implicate the first
and third prongs of the Hahn factors.
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We first consider Mr. Lujan’s claim that his Sixth Amendment rights were
violated when the district court denied his request to hire new counsel before
sentencing. He contends that “[d]enial of a motion to substitute counsel is outside of
the scope of an appeal waiver,” citing to United States v. Porter, 405 F.3d 1136
(10th Cir. 2005). But Mr. Lujan’s characterization of Porter is not supported by the
decision itself.
In Porter, the appeal waiver covered only an appeal from defendant’s
sentence, and the government did not seek to enforce the appeal waiver as to
Mr. Porter’s argument that the district court erred in denying his motion to substitute
counsel. Instead, the government argued that “entry of a voluntary and unconditional
guilty plea waives the right to assert all non-jurisdictional defenses on appeal, . . .
including the denial of a motion for substitute counsel.” Id. at 1140-41. We noted,
however, that Mr. Porter’s problems with his counsel began after he entered his
guilty plea, and we therefore concluded that the appeal of the denial of his motion to
substitute could not be barred by virtue of the guilty plea. Id. at 1141. Further, we
were considering the effect of a guilty plea, not an appeal waiver, on the defendant’s
appeal from a denial of a motion to substitute counsel, and therefore we did not hold
that that such an appeal is outside the scope of an appeal waiver, as Mr. Lujan
contends.
Moreover, Mr. Lujan’s Sixth Amendment claim that he was denied counsel of
his choice necessarily implicates the validity of his conviction. In his response, he
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quotes a passage from United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006), in
which the Supreme Court discusses the significance of having an attorney of one’s
choice. See Resp. at 4. In that decision, the Court held that the deprivation of a
criminal defendant’s choice of counsel is not subject to harmless-error review and
entitles the defendant to a reversal of his conviction. See Gonzalez-Lopez, 548 U.S.
at 142, 152. As a result, if Mr. Lujan were to prevail on his claim, he would be
entitled to a reversal of his conviction. His appeal of the district court’s denial of his
motion for substitute counsel is therefore within the scope of his appeal waiver
because it is an attack on his conviction.
Mr. Lujan also contends that the issues he has raised implicate the
miscarriage-of-justice prong of the Hahn analysis. See Resp. at 3. We have held that
“enforcement of an appellate waiver does not result in a miscarriage of justice unless
enforcement would result in one of the four situations enumerated in [United States v.
Elliott, 264 F.3d 1171, 1173 (10th Cir. 2001)].” Hahn, 359 F.3d at 1327. Those
situations are: (1) the district court relied on an impermissible factor such as race;
(2) ineffective assistance of counsel in connection with the negotiation of the waiver;
(3) the sentence exceeds the statutory maximum; and (4) the waiver is otherwise
unlawful. See id.
Other than his claim for ineffective assistance of counsel, Mr. Lujan has not
demonstrated how his appeal fits into any of the four situations identified above.
And he admits that “issues of ineffective assistance of counsel are generally not
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heard on direct appeal and are best reserved for proceedings under Title 28 U.S.C.
§ 2255.” Resp. at 3. We agree that Mr. Lujan has not waived his right to bring
claims of ineffective assistance of counsel challenging the validity of his guilty plea
or appellate waiver, but these claims should be raised in a collateral proceeding under
§ 2255, not on direct review. See United States v. Porter, 405 F.3d 1136, 1144
(10th Cir. 2005); United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001).
We have explained that “[t]his rule applies even where a defendant seeks to
invalidate an appellate waiver based on ineffective assistance of counsel.” Porter,
405 F.3d at 1144. We therefore conclude that enforcing the appeal waiver would not
result in a miscarriage of justice.
Accordingly, we grant the government’s motion to enforce the appeal waiver
and dismiss the appeal. This dismissal does not affect Mr. Lujan’s ability to file a
§ 2255 motion asserting a claim for ineffective assistance of counsel in connection
with his guilty plea or appeal waiver.
Entered for the Court
Per Curiam
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