F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 2, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-2338
(D.C. No. CR-05-977 RB)
SA M M Y RO D RIG U EZ-D ELG ADO, (D . N.M .)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before O’BRIEN, EBEL, and M cCO NNELL, Circuit Judges.
Defendant Sammy Rodriguez-Delgado was indicted with a codefendant on
charges of conspiracy and possession with intent to distribute cocaine arising out
of an incident involving 14.99 grams of cocaine. M r. Rodriguez-Delgado pled
guilty to possession with intent to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A) and 18 U.S.C. § 2. His plea
*
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 This order and judgment is not binding precedent, except under the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.
agreement states that he “knowingly waives the right to appeal this conviction
and/or any sentence within the statutory maximum authorized by law.” Plea
Agreement at 5. The agreement also recites his understanding that he faced a
sentence of “not less than ten (10) nor more than life” and “a mandatory
supervised release term of at least five (5) years.” Id. at 2. The district court
sentenced M r. Rodriguez-Delgado to 120 months in prison followed by a
five-year term of supervised release, and he appealed. The government has now
moved to enforce the appeal waiver in the plea agreement, pursuant to United
States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc). W e grant the motion
and dismiss the appeal.
Under Hahn, 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.” Id. at 1325. The miscarriage-of-justice
prong requires the defendant to show (a) his sentence relied on an impermissible
factor such as race; (b) ineffective assistance of counsel in connection with the
negotiation of the appeal waiver rendered the waiver invalid; (c) his sentence
exceeded the statutory maximum; or (d) his appeal waiver is otherwise unlawful
and the error “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. at 1327 (quotation omitted). The government’s motion
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addresses these considerations, explaining why none undermines the appeal
waiver here.
M r. Rodriguez-Delgado opposes the government’s motion solely on the
ineffective-assistance component of the miscarriage-of-justice test: “As is stated
in [M r. Rodriguez-Delgado’s] docketing statement, the ineffective assistance of
counsel is [his] primary issue on appeal and is therefore not barred by the
agreement as urged by the government.” A ppellant’s Response to the M otion to
Enforce Plea Agreement at 1; see Docketing Statement at 4, 6 (omitting formal
designation of issues, but requesting oral argument “on complicated issues of
ineffective assistance of counsel as well as other issues”). There are two basic
deficiencies in this attempt to keep the present appeal alive.
M r. Rodriguez-Delgado’s conclusory reference to his legal representation
gives no indication that his objection relates – as it must to have any bearing on
the enforcement of his appeal waiver – to “ineffective assistance of counsel in
connection with the negotiation of the appeal waiver render[ing] the waiver
invalid.” Hahn, 359 F.3d at 1327; cf. United States v. Porter, 405 F.3d 1136,
1144 (10th Cir.), cert. denied, 126 S. Ct. 550 (2005) (similarly refusing to void
appeal waiver in light of alleged sentencing error, because “[t]he relevant
question . . . is not whether [the] sentence is unlawful . . ., but whether . . . [the]
appeal waiver itself [is] unenforceable” (emphasis added)). W ithout this specific
connection to the appeal waiver, a generalized “objection about trial counsel’s
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performance [is] insufficient to open the Hahn door for this appeal.” United
States v. Quintana-Navarette, 192 F. App’x 790, 793 (10th Cir. 2006); cf. United
States v. Sarber, 196 F. App’x 673, 675 (10th Cir. 2006) (holding argument to
circumvent appeal waiver based on claim of error untethered to waiver itself “is
fundamentally misdirected” under principles clarified in Hahn and Porter).
Even if M r. Rodriguez-Delgado intends to challenge counsel’s performance
in a respect materially relevant to the appeal waiver, this appellate proceeding is
not the proper vehicle for that challenge. Because the record before us includes
only formal representations by M r. Rodriguez-Delgado reflecting the adequacy of
his representation in the plea proceedings, any ineffective-assistance claim would
have to rely on extra-record exchanges between counsel and client beyond our
purview. Such a claim must be brought in a motion under 28 U.S.C. § 2255
rather than by appeal, United States v. Delacruz-Soto, 414 F.3d 1158, 1168 (10th
Cir. 2005), and “[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 (citing Hahn, 359 F.3d at 1327 n.13). Indeed, M r. Rodriguez-Delgado’s
plea agreement preserves his right to bring a § 2255 motion “on the issue of
ineffective assistance of counsel.” Plea Agreement at 5. Accordingly, we shall
grant the government’s motion to dismiss this appeal, without prejudice to the
merits of any ineffective-assistance claims M r. Rodriguez-Delgado may elect to
pursue in collateral proceedings under § 2255.
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The government’s motion is granted and this appeal is DISM ISSED. The
mandate shall issue forthwith.
ENTERED FOR THE COURT
PER CURIAM
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