FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 31, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-4087
(D.C. No. 2:15-CR-00691-DS-1)
GUSTAVO HERNANDEZ-LOPEZ, (D. Utah)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
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Before KELLY, BACHARACH, and MORITZ, Circuit Judges.
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After entering into a plea agreement that included an appeal waiver,
Gustavo Hernandez-Lopez pled guilty to one count of possession of heroin with
intent to distribute in violation of 21 U.S.C. § 841(a)(1). He was sentenced to
120 months’ imprisonment.
Despite the appeal waiver, Hernandez-Lopez filed a pro se notice of appeal.
The government has moved to enforce the appeal waiver. See United States v. Hahn,
359 F.3d 1315, 1328 (10th Cir. 2004) (en banc). In response to the motion to
*
This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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.
enforce, Hernandez-Lopez states that he wishes to challenge his conviction and
sentence based on the ineffective assistance of counsel. We grant the motion to
enforce and dismiss the appeal.
“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.
Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). We address ineffective
assistance claims on direct appeal only under a narrow set of circumstances, such as
when the ineffective assistance claim is “fully developed on the record.” United
States v. Hamilton, 510 F.3d 1209, 1213 (10th Cir. 2007) (internal quotation marks
omitted). When, as in this case, a defendant “offers no argument supporting a reason
to depart from our general practice” we will not “do so, especially in light of [the]
failure to meaningfully argue the claim.” United States v. Porter, 405 F.3d 1136,
1144 (10th Cir. 2005).
The motion to enforce is granted, and this appeal is dismissed.
Entered for the Court
Per Curiam
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