Case: 08-4135 Document: 01017592885 Date Filed: 01/27/2009 Page: 1
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS January 27, 2009
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff!Appellee,
v.
No. 08-4135
GUILLERMO J. ARAIZA, (D.C. No. 2:07-CR-00707-TS-1)
(D. Utah)
Defendant!Appellant.
ORDER AND JUDGMENT *
Before TACHA, MURPHY, and McCONNELL, Circuit Judges.
Defendant Guillermo J. Araiza pleaded guilty to possession of
methamphetamine with intent to distribute and possession of a firearm in
furtherance of a drug trafficking crime. Pursuant to the plea agreement, he
waived his right to appeal his conviction or his sentence, provided his sentence
was within the statutory maximum authorized by law and within the advisory
sentencing guideline determined by the district court to apply. Defendant’s
*
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 This order and judgment is not binding precedent, except under the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.
Case: 08-4135 Document: 01017592885 Date Filed: 01/27/2009 Page: 2
sentence was below the statutory maximum and within the advisory guideline
range. Nevertheless, defendant filed a notice of appeal.
The government 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, defendant concedes through counsel that the issue he seeks to present
on appeal is within the scope of his appeal waiver and that he knowingly and
voluntarily waived his appellate rights. He further concedes that, subject to his
right to assert an issue of ineffective assistance of counsel in a subsequent
28 U.S.C. § 2255 motion, enforcing the waiver would not result in a miscarriage
of justice. Thus, defendant concedes that there are no valid grounds to object to
the government’s motion to enforce the appeal waiver. See Hahn, 359 F.3d at
1325.
Defendant does ask that he be allowed to pursue a § 2255 claim that his
counsel was constitutionally ineffective in connection with the negotiation of the
appeal waiver. Defendant correctly notes that a claim of ineffective assistance of
counsel in connection with the negotiation of the plea agreement must ordinarily
be raised in a collateral § 2255 proceeding, not on direct appeal. See United
States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005); see also United States v.
Cockerham, 237 F.3d 1179, 1184 (10th Cir. 2001) (“[A] claim of ineffective
assistance of counsel in connection with the negotiation of a plea agreement
cannot be barred by the agreement itself.”) (alteration and quotation omitted).
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Case: 08-4135 Document: 01017592885 Date Filed: 01/27/2009 Page: 3
We have reviewed the record and defendant’s response, and we agree that
the appeal falls within the scope of the appeal waiver, that defendant knowingly
and voluntarily waived his appellate rights, and that enforcing the waiver would
not result in a miscarriage of justice.
Accordingly, we GRANT the motion to enforce the appeal waiver, without
prejudice to defendant’s right to file a § 2255 motion asserting ineffective
assistance of counsel in connection with the negotiation of his appeal waiver, and
we DISMISS the appeal.
ENTERED FOR THE COURT
PER CURIAM
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