FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
January 18, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-6048
ANDREW POLLY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:06-CR-00245-HE-1)
Caren I. Friedman, Santa Fe, New Mexico, for Defendant-Appellant.
Leslie M. Maye, Assistant United States Attorney (John C. Richter, United States
Attorney, also on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Before LUCERO, ANDERSON, and EBEL, Circuit Judges.
EBEL, Circuit Judge.
Defendant Andrew Polly was arrested on March 14, 2006, after police discovered
crack and powder cocaine on his person and in his vehicle. Later, police also found
powder cocaine in a storage unit rented by Polly. The district court denied Polly’s
motions to suppress the cocaine, and Polly pled guilty. On appeal, Polly claims that
(1) the district court erred in denying his suppression motions, (2) the district court erred
in applying a sentencing enhancement for obstruction of justice, (3) he is entitled to a
reduction in his sentence, and (4) his counsel was ineffective at the suppression phase of
the proceedings. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm the
district court. We dismiss, without prejudice, Polly’s ineffective assistance of counsel
claim.
I. Background
On the afternoon of March 14, 2006, police were investigating KC’s Garage, a
vehicle repair garage in Oklahoma City, Oklahoma, for drug-trafficking activity. 1
Several patrol cars were parked next to the garage, while undercover officer Jimmy
Cortez was parked across the street in an unmarked car. Cortez observed a pickup truck
drive down the street in front of the garage, signal a left turn into the garage, start to turn,
crossing the middle line of the street, and then, possibly because he noticed the police
cars at the garage, continue down the street. Because the vehicle’s driver and passenger
windows were rolled down, Cortez recognized Polly as the driver. Cortez knew Polly
1
These facts are largely drawn from the evidence found at the suppression hearing. The
parties did not include the suppression hearing transcript or the plea agreement in the
appellate record. However, we have, sua sponte, supplemented the record with those
documents. See Fed. R. App. P. 10(e)(2)(C); United States v. Holly, 488 F.3d 1298,
1308 n.10 (10th Cir. 2007).
2
because officers had previously conducted a controlled drug buy with Polly and
suspected Polly of involvement in drug distribution with the owner of the garage. Cortez,
in his unmarked car, followed Polly, and observed him speeding through a residential
area. Cortez called for a marked police car to pull over Polly, and Officer Blosser did so.
As Blosser asked Polly for his driver’s license and proof of insurance, Cortez
pulled in behind Blosser. Cortez asked Polly if he would step out of his vehicle, and
Polly did so. Cortez then asked Polly if he had any guns, drugs, or other illegal objects
on his person, and Polly said that he did not. Cortez asked the same question in regard to
Polly’s car, and Polly stated that he did not see any reason to search the vehicle. Cortez
then asked Polly if Blosser could search him so that he could be placed in the back of
Blosser’s car while Cortez issued him traffic citations for speeding and for crossing over
the center lane line. According to Cortez, Polly responded by saying, “I don’t mind.”
While patting down Polly, Blosser felt a large round object in his right front pants
pocket. Blosser asked, “What is this?”, and Polly stated that he did not know. Cortez
testified that he heard a crinkling noise that sounded like plastic baggies. Blosser
removed the baggies from Polly’s pocket, and the baggies appeared to contain crack
cocaine, packaged individually in different quantities. Polly was then arrested, and in the
subsequent search of Polly, the officers seized $992 in cash.
While this was taking place, Cortez noticed that residents of the area—which was
a high-crime area—began coming out of their homes and were questioning the officers
about the traffic stop. Out of a concern for officer safety, Cortez radioed for other
3
officers to come to the scene at this time. Cortez asked one of the officers who then
arrived to drive Polly’s truck back to the police station where it could be searched. Back
at the station, officers searched the vehicle and found a receipt for a U-Haul storage unit,
keys for a U-Haul lock, digital scales, razor blades, latex gloves, and a shaving bag
containing crack cocaine and cocaine powder. Officers then obtained a search warrant
for the U-Haul storage unit, where they discovered cocaine powder.
Polly was indicted on three counts (for the drugs found on his person, in his
vehicle, and in the storage unit, respectively) of knowingly and intentionally possessing,
with intent to distribute, crack cocaine and cocaine powder, in violation of 21 U.S.C.
§ 841(a)(1). Polly moved to suppress the evidence from the three searches, but the
district court denied his motions after an evidentiary hearing. Polly subsequently entered
a plea of guilty, withdrew his guilty plea, and changed attorneys. A bench trial was set
for September 17, 2007, on which date Polly, rather than begin a trial, again pled guilty to
the indictment. The parties had apparently not anticipated the guilty plea, and so none of
the paperwork for a guilty plea had been prepared before that day. The parties used the
document Polly signed on January 4, 2007, in which he originally agreed to plead guilty,
and simply modified it by adding the signature of Polly’s new attorney and making some
modifications to the document. The court accepted Polly’s plea of guilty and the plea
agreement, which preserved his right to appeal the denial of his motions to suppress, but
otherwise provided a general waiver of his appeal rights.
4
II. Discussion
A. Motions to suppress
On appeal, Polly challenges the district court’s denial of his motions to suppress
the evidence discovered in the searches of his person and his truck. “The Fourth
Amendment protects ‘[t]he right of the people to be secure in their persons, houses,
paper, and effects, against unreasonable searches and seizures . . . .’” United States v.
Orduna-Martinez, 561 F.3d 1134, 1137 (10th Cir. 2009) (quoting U.S. Const. amend.
IV). “[A] warrantless search is presumptively unreasonable under the Fourth
Amendment and therefore invalid unless it falls within a specific exception to the warrant
requirement.” Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1240 (10th Cir. 2003).
Upon review of the denial of a motion to suppress, “we view the evidence in the
light most favorable to the government, accept the district court’s findings of fact unless
clearly erroneous, and review de novo the ultimate determination of reasonableness under
the Fourth Amendment.” United States v. Eckhart, 569 F.3d 1263, 1270 (10th Cir.
2009), cert. denied, 130 S. Ct. 1752 (2010). In this case, the district “court generally
found Officer Cortez’ testimony at the [suppression] hearing to be credible” (Doc. 29 at
4), a factual finding we review for clear error. 2 United States v. Taylor, 592 F.3d 1104,
2
Polly challenges the credibility of Cortez’s testimony that Polly needed to be placed in a
patrol car in order for the police to issue him the traffic citations. Cortez testified that in
this situation, he was concerned about his own safety because Cortez frequently
conducted undercover operations in the area and he was concerned about being
recognized by residents. Cortez also articulated safety concerns about Polly remaining in
his truck, including that Polly was higher than the officers while he was in his truck and
5
1108 (10th Cir.), cert. denied, 130 S. Ct. 3339 (2010).
1. Search of Defendant’s person
Polly first argues that the search of his person was unreasonable, both because the
traffic stop was unjustified and because the resulting detention exceeded the scope of the
stop.
For Fourth Amendment purposes, the legality of a traffic stop is assessed pursuant
to the framework established in Terry v. Ohio, 392 U.S. 1 (1968). See United States v.
Winder, 557 F.3d 1129, 1133 (10th Cir.), cert. denied, 129 S. Ct. 2881 (2009).
Accordingly, we proceed in two steps. First, we question whether the traffic stop “was
‘justified at its inception.’” Id. (quoting United States v. Valenzuela, 494 F.3d 886, 888
(10th Cir. 2007)). Second, if the stop was justified, “we determine whether ‘the resulting
detention was reasonably related in scope to the circumstances that justified the stop in
the first place.’” Id. at 1134 (quoting Valenzuela, 494 F.3d at 888).
Polly argues that the traffic stop was not justified at the outset because it was just a
ruse so that Officer Cortez could further his drug-trafficking investigation. “A traffic
stop is justified at its inception if an officer has (1) probable cause to believe a traffic
violation has occurred, or (2) a reasonable articulable suspicion that a particular motorist
has violated any of the traffic or equipment regulations of the jurisdiction.” Id. at 1134.
Even if Polly is correct that the traffic stop was simply a ruse, that fact is legally
Polly has some history of violence. Thus, it appears that Cortez had good reason to want
to place Polly in the patrol car while issuing the citations, and we cannot conclude that
the district court clearly erred in crediting Cortez’s testimony.
6
irrelevant. In determining whether a traffic stop is constitutional, the officer’s “subjective
intent or good faith do[es] not affect the reasonableness of the stop.” Orduna-Martinez,
561 F.3d at 1137 (citing Whren v. United States, 517 U.S. 806, 813 (1996)); see also
Winder, 557 F.3d at 1134 (noting that “an officer’s actual motivations or subjective
beliefs and intentions are, quite simply, irrelevant” (internal quotations omitted)).
Accordingly, “an officer’s motive” will not “invalidate[] objectively justifiable behavior
under the Fourth Amendment.” Whren, 517 U.S. at 812 (emphasis added).
There can be little doubt that the traffic stop here was objectively justifiable based
on the traffic violations that Cortez observed. The district court found that Polly
committed traffic violations both by crossing the centerline and by speeding. Although
Polly disputes whether he was speeding, he has not shown that the district court clearly
erred in determining that Cortez observed him speeding. Polly also claims that he did not
commit a traffic violation by crossing the centerline because he was merely making a left
turn and then changed his mind and proceeded, which is not, according to Polly, a traffic
violation. However, the Oklahoma statute he cites in support of this proposition states
only that one can cross the centerline when making a left turn, not that someone can cross
the centerline in the process of an aborted left turn and come back over the centerline. 47
Okla. Stat. Ann. § 11-301(C). Therefore, Polly has not established that the district court
clearly erred in finding that Officer Cortez observed Polly commit two traffic violations,
and so the traffic stop was justified at its inception.
We turn now to considering whether the scope of the traffic stop was “reasonably
7
related to the circumstances which justified [the stop] in the first place.” Eckhart, 569
F.3d at 1273. In conducting this inquiry, we “focus on the reasonableness of the traffic
stop in light of both the length of the detention and the manner in which it was carried
out.” Valenzuela, 494 F.3d at 890. Accordingly, “officers may ask questions outside the
scope of the traffic stop so long as the questions do not appreciably prolong the length of
the stop.” Id.
The detention of Polly was reasonable with regard to both the length of the
detention and the manner in which the police proceeded. First, Officer Blosser asked
Polly for his license and registration, which the police are unquestionably permitted to do
in the course of a traffic stop. See United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.
1993) (“During a routine traffic stop, the detaining officer may request a driver’s license
and vehicle registration, run a computer check on the car and driver, and issue a
citation.”). Cortez then asked Polly to step out of the vehicle, which is also permissible
during a routine traffic stop for purposes of officer safety; here, where Cortez knew of
Polly’s violent past and Polly was seated about two feet above the officers in his truck,
the officer safety concern was clearly met. See United States v. Melendez-Garcia, 28
F.3d 1046, 1052 (10th Cir. 1994) (citing Pennsylvania v. Mimms, 434 U.S. 106, 111
(1977) (per curiam)). Next, Cortez asked Polly if he had any guns, knives, drugs, or
other illegal items on his person or in his vehicle, a question which we have previously
upheld as permissible. See Valenzuela, 494 F.3d at 890.
At this point, Cortez asked Polly if he could be searched so that he could be placed
8
in Blosser’s patrol car while the officers wrote him two traffic citations, and Polly said “I
don’t mind.” Since Polly’s commission of two traffic offenses constituted the original
justification for the stop, this question was “reasonably related to the circumstances
which justified [the stop] in the first place.” Eckhart, 569 F.3d at 1273.
The district court upheld the legality of the ensuing search as a warrantless search
authorized by valid consent. See Eidson v. Owens, 515 F.3d 1139, 1145-46 (10th Cir.
2008) (recognizing “valid consent” as an exception to the general prohibition against
warrantless searches). Polly first argues that, as a factual matter, his statement was not a
consent to search. Although Cortez testified that Polly said “I don’t mind” when asked
whether Blosser could search him, Polly testified that he said “I don’t care.” Polly claims
that “I don’t care” does not show consent, but rather shows that Polly thought he was
going to be searched regardless of how he responded. First, we note that the district court
relied on Cortez’s testimony that Polly said “I don’t mind,” and Polly has not shown that
reliance to be clearly erroneous. Even if we considered the possibility that Polly actually
said “I don’t care,” we cannot agree with the fine parsing of the language that he
suggests. While Polly does not cite to any authority supporting his linguistic
interpretation, some courts have found that “I don’t care” does indicate consent to search.
See, e.g., United States v. Thompson, 403 F.3d 533, 537 (8th Cir. 2005) (noting that
defendant “consented by stating ‘I don’t care’ and then opening the door of his vehicle”);
United States v. Crain, 33 F.3d 480, 483 (5th Cir. 1994) (failing to note any distinction
between “I don’t care,” “I don’t mind,” and “go ahead”). As a factual matter, then, Polly
9
stated his consent to the pat-down search.
Polly next argues that his consent was legally invalid because it was coerced.
“Whether a party freely and voluntarily gave his consent to a search is a question of fact
and is determined from the totality of the circumstances.” United States v. Sanchez, 608
F.3d 685, 689 (10th Cir. 2010) (quotations, alterations omitted), petition for cert. filed,
(U.S. Oct. 5, 2010) (No. 10-6895). The district court found, based on the totality of the
circumstances, that consent was voluntary because “[t]he officers did not have their
weapons drawn, they used a conversational tone in their dealings with defendant, the
defendant was in a public place, and only two officers were present.” (Doc. 29 at 6.)
This determination was not clearly erroneous. Polly claims that Cortez said he would call
a drug-sniffing dog if Polly did not consent, but Cortez denied it, and the district court
credited Cortez’s testimony over Polly’s. Even if Cortez had stated he would bring in a
drug-sniffing dog, the mere fact that a suspect has to choose between two lawful, albeit
distasteful, options does not render that choice coerced. See United States v. Butler, 966
F.2d 559, 563 (10th Cir. 1992) (finding consent to search voluntary where a joint resident
of an apartment told the defendant that if they did not consent to search, the police would
get a warrant anyway); see also United States v. White, 979 F.2d 539, 542 (7th Cir. 1992)
(“When the expressed intention [of a police officer] to obtain a warrant is genuine . . . it
does not vitiate consent.”).
The stop of Polly’s truck was justified at the outset by his commission of two
traffic offenses, and the scope of the stop was reasonable. As Polly consented to the
10
search of his person, the drugs that were found in his pockets were obtained without
violation of his Fourth Amendment right to be free from unreasonable searches and
seizures.
2. Search of Defendant’s vehicle
Polly next argues that the drugs found in his truck should be suppressed.
Although that search was conducted without a warrant, the government contends that the
search of the truck was justified as a search incident to a valid arrest. The district court
properly rejected this argument. The Supreme Court recently held that that exception
applies only to areas within an arrestee’s “immediate control,” and so the exception “does
not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has
been secured and cannot access the interior of the vehicle.” Arizona v. Gant, 129 S. Ct.
1710, 1714 (2009). The truck was searched after Polly was arrested and the truck was
separately taken back to the police station by police officers, and so the truck clearly was
not in an area within Polly’s immediate control at the time it was searched. The search of
the truck thus cannot be justified as a search incident to a valid arrest.
Nevertheless, the district court correctly concluded that the search was justified
instead by the vehicle exception to the warrant requirement. “If there is probable cause to
believe a vehicle contains evidence of criminal activity,” the warrant requirement does
not apply to “a search of any area of the vehicle in which the evidence might be found.”
Id. at 1721 (citing United States v. Ross, 456 U.S. 798, 820-21 (1982)). Here, we have
little trouble concluding that, after the search of Polly, probable cause existed that
11
justified an evidentiary search of the vehicle. In addition to the facts that Polly had
already sold drugs to undercover agents as part of a controlled buy and had appeared to
flee upon seeing the police at the garage, the police had just searched his person and
found a substantial amount of crack cocaine on him after he exited the vehicle. These
factors are sufficient to establish probable cause that the truck contained illegal drugs.
Indeed, Polly’s principal argument as to why the probable cause vehicle exception should
not apply is that the probable cause to search the truck was premised upon the unlawfully
obtained crack found in his pocket, an argument that we have already rejected.
Therefore, the search was valid under the vehicle exception to the Fourth Amendment’s
warrant requirement. 3
B. Appeal waiver
Polly next argues that 1) the district court erred in enhancing Polly’s offense level
by two after finding Polly obstructed justice by committing perjury during his testimony
at the suppression hearing, and 2) Polly is entitled to a reduction in his sentence pursuant
to 18 U.S.C. § 3582(c)(2), in light of the Sentencing Commission’s amendment to the
Sentencing Guidelines lowering the offense level for convictions involving crack
cocaine. The government contends that both of these claims are barred by the appeal
waiver contained in Polly’s plea agreement. We agree.
3
Polly also argues that the evidence obtained from the storage unit should be suppressed
as fruit of the poisonous tree because of the illegality of the earlier searches. See United
States v. Olivares-Rangel, 458 F.3d 1104, 1108-09 (10th Cir. 2006). However, because
we conclude that those searches were in fact legal, this argument necessarily fails.
12
Regarding his appeal waiver, Polly’s plea agreement states4:
8. Defendant understands that the Court will consider those factors in Title
18, United States Code, Section 3553(a) in determining his sentence.
Defendant also understands that the Court has jurisdiction and authority to
impose any sentence within the statutory maximum for the offense(s) to
which he is pleading guilty. Defendant further understands that Title 28,
United States Code, Section 1291, and Title 18, United States Code,
Section 3742, give him the right to appeal the judgment and sentence
imposed by the Court. Acknowledging all this, defendant in exchange for
the promises and concessions made by the United States in this plea
agreement, knowingly and voluntarily waives his right to:
a. Appeal or collaterally challenge his guilty plea, sentence and
restitution imposed, and any other aspect of his conviction, including but
not limited to any rulings on pretrial suppression motions or any other
pretrial dispositions of motions and issues; except the defendant preserves
his right to appeal the rulings on his three Motion [sic] to Suppress (Doc.
No. 23 and 29), pursuant to Rule 11(a)(2) Fed. R. Crim. P.
b. Appeal, collaterally challenge, or move to modify under
18 U.S.C. § 3582(c)(2) or some other ground, his sentence as imposed by
the Court and the manner in which the sentence is determined, provided the
sentence is within or below the advisory guideline range determined by the
Court to apply to this case. Defendant acknowledges that this waiver
remains in full effect and is enforceable, even if the Court rejects one or
more of the positions of the United States or defendant set forth in
Paragraph 7 [addressing the possible application of the sentencing
guidelines to Polly’s case].
c. It is provided that defendant specifically does not waive the right
to appeal a sentence above the advisory sentencing guideline range
determined by the Court to apply to this case.
4
Polly’s attorney at the plea hearing mistakenly crossed out this section of the plea
agreement. To correct this mistake, defense counsel, the prosecutor, and Polly himself
initialed next to a note reading “This stays in as part of plea agreement,” and defense
counsel stated during the hearing that he “inadvertently put a line through some areas” of
the plea agreement, but that they had corrected those mistakes. (Plea Agreement at 9-10;
Plea Tr. at 48.) Thus, this section of the Plea Agreement remains valid.
13
9. The United States agrees to waive its right under 18 U.S.C. § 3742 to
appeal the sentence imposed by the Court and the manner in which the
sentence was determined, provided defendant’s sentence is within the
advisory guideline range determined by the Court to apply to this case. By
this agreement, the United States specifically does not waive its right to
appeal a sentence below the advisory sentencing guideline range
determined by the Court to apply to this case.
(Plea Agreement at 9-10.)
An appeal “waiver . . . will be enforced if: (1) ‘the disputed appeal falls within the
scope of the waiver of appellate rights; (2) . . . the defendant knowingly and voluntarily
waived his appellate rights; and (3) . . . enforcing the waiver would [not] result in a
miscarriage of justice.’” United States v. Vidal, 561 F.3d 1113, 1118 (10th Cir.) (quoting
United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (per curiam) (en banc)),
cert. denied, 130 S. Ct. 221 (2009). This “waiver-enforceability analysis is informed by
contract principles, which govern plea agreements.” United States v. Ibarra-Coronel, 517
F.3d 1218, 1221 (10th Cir. 2008). “Whether a defendant’s appeal waiver set forth in a
plea agreement is enforceable is a question of law.” Id. With this background, we
address the applicability of the waiver to Polly’s claims about the erroneous sentence
enhancement and his entitlement to a reduction in his sentence pursuant to § 3582(c)(2).
1. Sentence enhancement
Polly claims that the district court erred in increasing his offense level by two,
pursuant to Sentencing Guideline § 3C1.1, after the court found that Polly committed
perjury when he testified during the suppression hearing. Polly does not argue that this
claim falls outside of the scope of the waiver, nor does he argue that the waiver was not
14
knowing and voluntary. Rather, Polly argues that enforcing the waiver as to this claim
would result in a miscarriage of justice because the “error seriously affects the fairness
and integrity of the proceedings.” (Reply Br. at 10-11.)
For purposes of the enforcement of an appeal waiver, “[a] miscarriage of justice
occurs [1] where the district court relied on an impermissible factor such as race,
[2] where ineffective assistance of counsel in connection with the negotiation of the
waiver renders the waiver invalid, [3] where the sentence exceeds the statutory
maximum, or [4] where the waiver is otherwise unlawful.” United States v. Shockey,
538 F.3d 1355, 1357 (10th Cir. 2008) (quotation omitted). This “list is exclusive:
‘enforcement of an appellate waiver does not result in a miscarriage of justice unless
enforcement would result in one of the four situations enumerated’ above.” Id. (quoting
Hahn, 359 F.3d at 1327). Polly’s complaint—that enforcement of the waiver would
seriously affect the fairness and integrity of the proceedings—does not fit into any of the
categories.
We rejected a nearly identical argument in United States v. Smith, 500 F.3d 1206
(10th Cir. 2007). In Smith, we applied the defendant’s appeal waiver to bar a claim that
the district court erred in applying the § 3C1.1 enhancement, and that the error “affect[ed]
the fairness of the proceedings, as well as the integrity and public reputation of the
judicial system.” Id. at 1212.
Ms. Smith misunderstands the miscarriage of justice exception to
enforcement of a waiver of appellate rights. This exception looks to
whether “the waiver is otherwise unlawful,” [Hahn, 359 F.3d at 1327]
15
(emphasis added), not to whether another aspect of the proceeding may
have involved legal error. Ms. Smith's argument that alleged errors in the
court's determination of her sentence should invalidate her appellate waiver
illustrates what Hahn called “the logical failing[ ] of focusing on the result
of the proceeding, rather than on the right relinquished, in analyzing
whether an appeal waiver is [valid].” Id. at 1326 n. 12 (discussing whether
an appeal waiver was knowing and voluntary) . . . .
Smith, 500 F.3d at 1212-13. Because Polly does not challenge the lawfulness of the
waiver itself, enforcing the waiver as to his claim that the district court improperly
applied the obstruction of justice sentence enhancement does not result in a miscarriage
of justice. The appeal waiver thus bars this claim.
2. Reduction in sentence based on amendment to Sentencing
Guidelines
Polly also argues that his sentence should be modified because the United States
Sentencing Commission amended the Guidelines in 2008 to provide for a lower offense
level when an offense involves cocaine base and another controlled substance. See
U.S.S.G. § 2D1.1 app. n.10(D)(i). According to Polly, this falls outside the scope of the
appeal waiver because, in light of this amendment, Polly’s sentence is above the
Guideline range that would apply if he were sentenced today. (See Plea Agreement at 9
(stating that waiver of right to challenge sentence applies, “provided the sentence is
within or below the advisory guideline range determined by the Court to apply to this
case”).)5
5
In advancing this argument, Polly invokes § 3582(c)(2), which allows a district court to
reduce a term of imprisonment in light of a change to the Sentencing Guidelines.
However, a motion pursuant to § 3582(c)(2) must be brought in the district court. See
16
This argument is contradicted by the plain terms of the waiver. The waiver
explicitly waives his right to “[a]ppeal, collaterally challenge, or move to modify under
18 U.S.C. § 3582(c)(2) or some other ground, his sentence as imposed by the Court and
the manner in which the sentence is determined, provided the sentence is within or below
the advisory guideline range determined by the Court to apply to this case.” (Plea
Agreement at 9.) Polly does not dispute, nor can he, that his sentence was within the
guideline range “determined by the Court to apply to this case.” (Id.) The waiver does
not contemplate permitting a court to reassess what guideline range would apply if the
defendant was sentenced today, and instead looks only at the guideline range that the
district court actually applied. See United States v. Jones, 531 F.3d 163, 180 n.9 (2d Cir.
2008) (“Where a defendant sentenced pursuant to the former crack Guidelines has waived
his right to appeal . . . the amended Guidelines [do not] constitute grounds for finding that
appeal waiver unenforceable.” (quotations, alteration omitted)). Accordingly, this
argument falls within the scope of the appeal waiver.
Polly does not claim that he did not knowingly and voluntarily agree to the waiver,
nor that enforcement of the waiver on this ground would constitute a miscarriage of
justice. Therefore, Polly’s appeal waiver applies to bar this claim.
Winder, 557 F.3d at 1136-37 (noting that § 3582 “vest[s] the district court with the power
to assess” whether a change in the Guidelines warrants a sentence reduction).
Nonetheless, whether this claim is pressed as a challenge to his sentence on direct appeal
or as a § 3582(c)(2) motion, the claim is clearly barred by the appeal waiver.
17
C. Ineffective assistance of counsel
Finally, Polly contends that he received ineffective assistance of counsel at the
suppression phase of the case due to counsel’s failure to interview witnesses and
subpoena the radio dispatch. We decline to consider this claim on direct appeal.6
“Ineffective assistance of counsel claims ‘should be brought in collateral
proceedings, not on direct appeal. Such claims brought on direct appeal are
presumptively dismissible, and virtually all will be dismissed.’” United States v.
Calderon, 428 F.3d 928, 931 (10th Cir. 2005) (quoting United States v. Galloway, 56
F.3d 1239, 1240 (10th Cir. 1995) (en banc)). On direct appeal, the record is not
developed with the purpose of showing counsel’s competence, and the district court has
not yet had an opportunity to consider counsel’s effectiveness. See Massaro v. United
States, 538 U.S. 500, 505-06 (2003). By contrast, a § 2255 proceeding affords both the
defendant and the government an opportunity to demonstrate whether counsel rendered
effective assistance. Furthermore, the district court will be the first to pass upon the
effectiveness of counsel, and because the judge considering the § 2255 motion will
usually be the same judge who presided at trial, the district court “should have an
advantageous perspective for determining the effectiveness of counsel’s conduct and
6
The government argues that this argument, too, is barred by the appeal waiver.
However, it is not clear to us whether the appeal waiver contained in the plea agreement
would bar a 28 U.S.C. § 2255 motion challenging the effectiveness of Polly’s counsel in
regard to the motion to suppress. Because we dismiss this claim for the procedural
reason discussed below, we leave the question of the applicability of the appeal waiver to
this claim for the district court to decide in the first instance, should Polly pursue the
issue in a § 2255 motion.
18
whether any deficiencies were prejudicial.” Id. at 506.
These concerns compel dismissal without prejudice of Polly’s ineffective
assistance of counsel claim here on direct appeal. Although Polly mentioned at his plea
hearing that he thought his counsel failed to investigate and bring forward certain
evidence that was relevant to the suppression issue, Polly did not have a chance at that
time to develop fully a record that would support such a claim. Therefore, we conclude
that Polly’s claim that his counsel provided ineffective assistance during the suppression
phase must be dismissed without prejudice as improperly raised on direct appeal.
III. Conclusion
For the foregoing reasons, we AFFIRM Polly’s conviction and sentence. We
DISMISS without prejudice his claim of ineffective assistance of counsel.
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