FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 25, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-3116
(D.C. No. 2:16-CR-20092-JAR-1)
MARCELINO ALMARAZ, (D. Kan.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before HARTZ, PHILLIPS, and EID, Circuit Judges.
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Marcelino Almaraz pleaded guilty to one count of aiding and abetting in the
preparation of false and fraudulent income tax returns and one count of filing a false
or fraudulent tax return. He was sentenced to serve 21 months in prison and ordered
to pay $397,552 in restitution. Although his plea agreement contained a waiver of
his appellate rights, he filed a notice of appeal. The government has moved to
enforce the appeal waiver in Mr. Almaraz’s plea agreement pursuant to 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This order and judgment is not binding precedent, except under the doctrines of law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.
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. Mr. Almaraz indicated in his
docketing statement that he wants to challenge the restitution portion of his sentence
on appeal.
We first note that Mr. Almaraz was represented by attorney Carl Cornwell in
the proceedings in district court and Mr. Cornwell entered an appearance on
Mr. Almaraz’s behalf on appeal. But Mr. Almaraz filed a motion to represent
himself pro se on appeal because he wanted to argue that Mr. Cornwell provided
ineffective assistance of counsel in his case before the district court. We
subsequently: (1) granted Mr. Cornwell’s motion to withdraw as counsel for
Mr. Almaraz; (2) denied Mr. Almaraz’s motion to represent himself pro se; and
(3) appointed the Federal Public Defender for the District of Kansas to represent
Mr. Almaraz on appeal.
In his response to the motion to enforce, Mr. Almaraz disputes that his
appellate waiver was knowing and voluntary. He wants to challenge the waiver (and
his guilty plea) based on Mr. Cornwell’s alleged ineffective assistance of counsel.
But “he understands after consultation with current counsel that ‘a defendant must
generally raise claims of ineffective assistance of counsel in a collateral proceeding,
not on direct review’—‘even where a defendant seeks to invalidate an appellate
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waiver based on ineffective assistance of counsel.’” Resp. at 1-2 (quoting United
States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005)).
In his plea agreement, Mr. Almaraz reserved the right to raise a claim in a
collateral proceeding for ineffective assistance of counsel in the negotiation of his
appeal waiver. He also reserved the right—notwithstanding the other waivers in his
plea agreement—to raise “any subsequent claims with regards to ineffective
assistance of counsel or prosecutorial misconduct.” Mot. to Enf., Attach. C at 11.
Given these circumstances, Mr. Almaraz “does not object to a finding that he
cannot show on the present record that his plea or his waiver was not knowing or
voluntary, and he does not object to a dismissal of his direct appeal on the
government’s motion without prejudice to him filing a 28 U.S.C. § 2255 motion
alleging ineffective assistance of counsel.” Resp. at 2. Considering the Hahn
factors, Mr. Almaraz does not contest that his appeal falls within the scope of his
appeal waiver so we need not address that issue. See Porter, 405 F.3d at 1143. On
the present record, we find that his waiver was knowing and voluntary. Although
ineffective assistance of counsel in the negotiation of the plea agreement is one of the
four circumstances that could establish that enforcing the appeal waiver would result
in a miscarriage of justice, see Hahn, 359 F.3d at 1327, Mr. Almaraz has agreed to
raise any such claim in a collateral proceeding, consistent with this court’s decision
in Porter.
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Accordingly, we grant the government’s motion to enforce the appeal waiver
and dismiss the appeal. This dismissal is without prejudice to Mr. Almaraz filing a
§ 2255 motion that raises claims of ineffective assistance of counsel in connection
with his guilty plea or appeal waiver.
Entered for the Court
Per Curiam
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