FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 10, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2138
(D.C. No. 2:17-CR-01163-KG-1)
RAFAEL ORDUNO-RAMIREZ, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
_________________________________
Rafael Orduno-Ramirez pled guilty to drug and immigration offenses and was
sentenced to 44 months in prison. His plea agreement included a broad waiver of his
appellate rights provided his sentence was at or under the maximum statutory penalty,
which it was. Notwithstanding his appeal waiver, Mr. Orduno-Ramirez now seeks to
challenge his sentence. The government has moved to enforce the appeal waiver under
United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).
*
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This order and judgment is not binding precedent, except under the doctrines of law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.
Hahn sets forth three factors to consider in evaluating an appeal waiver:
“(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. One way a defendant can demonstrate that enforcing the appellate
waiver will result in a miscarriage of justice is to show that he received ineffective
assistance of counsel in connection with the negotiation of the waiver, rendering the
waiver invalid. See id. at 1327.
Mr. Orduno-Ramirez does not contest that his appeal falls within the
scope of the appeal waiver. Instead, he disputes the second and third Hahn factors
on the ground that he received ineffective assistance from his trial counsel.
Mr. Orduno-Ramirez asserts that the waiver was not knowing and voluntary because
his lawyer did not communicate with him and coerced him into signing the plea
agreement, though he acknowledges he made contrary representations in the plea
agreement and during the Rule 11 colloquy. Similarly, he contends that enforcing the
waiver would result in a miscarriage of justice because his trial counsel provided
ineffective assistance in negotiating it. As evidence of ineffectiveness, he points to a
pro se letter sent to the district court shortly after he signed the plea agreement, in
which he complained about his representation and successfully requested the
appointment of new counsel.
“[A] defendant must generally raise claims of ineffective assistance of counsel
in a collateral proceeding, not on direct review. This rule applies even where a
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defendant seeks to invalidate an appellate waiver based on ineffective assistance of
counsel.” United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005) (citation
omitted); see also Hahn, 359 F.3d at 1327 n.13 (“Generally, we only consider
ineffective assistance of counsel claims on collateral review. Our holding today does
not disturb this longstanding rule.” (citation omitted)). This is because it is important
to develop a factual record for ineffective-assistance claims in the district court. See
United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc); see also
United States v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011) (explaining that “this
court has considered ineffective assistance of counsel claims on direct appeal in
limited circumstances, but only where the issue was raised before and ruled upon by
the district court and a sufficient factual record exists”). Mr. Orduno-Ramirez
concedes that “we do not have a properly and fully developed evidentiary record” on
his allegations of ineffective assistance. Resp. to Mot. to Enforce at 3.
When a defendant “offers no argument supporting a reason to depart from our
general practice,” as is the case here, we have declined to consider
ineffective-assistance claims on direct appeal. Porter, 405 F.3d at 1144.
Accordingly, we grant the motion to enforce and dismiss the appeal, without
prejudice to Mr. Orduno-Ramirez raising allegations of ineffective assistance of
counsel in a collateral proceeding.
Entered for the Court
Per Curiam
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