FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 14, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-3170
(D.C. No. 5:17-CR-40041-DDC-1)
RYAN J. SINGLETON, (D. Kan.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before TYMKOVICH, Chief Judge, BACHARACH and MORITZ, Circuit Judges.
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Following his acceptance of a plea agreement that included a waiver of his
right to appeal, Ryan J. Singleton pleaded guilty to possession of child pornography,
in violation of 18 U.S.C. § 2252(a)(4)(B). Despite his waiver, he filed an appeal.
The government has moved to enforce Singleton’s appeal waiver. See United States
v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).
In evaluating a motion to enforce a waiver, we consider: “(1) whether the
disputed appeal falls within the scope of the waiver of appellate rights; (2) whether
*
This order and judgment is not binding precedent, except under the doctrines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.
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.
Singleton’s plea agreement includes the following waiver of his appellate and
collateral-attack rights:
The defendant knowingly and voluntarily waives any right to appeal
or collaterally attack any matter in connection with this prosecution, his
conviction, or the components of the sentence to be imposed herein,
including the length and conditions of supervised release, as well as any
sentence imposed upon a revocation of supervised release. The defendant
is aware that 18 U.S.C. § 3742 affords him the right to appeal the
conviction and sentence imposed. The defendant also waives any right to
challenge his sentence, or the manner in which it was determined, or
otherwise attempt to modify or change his sentence, in any collateral attack,
including, but not limited to, a motion brought under 28 U.S.C. § 2255
(except as limited by United States v. Cockerham, 237 F.3d 1179, 1187
(10th Cir. 2001)), or a motion brought under Federal Rule of Civil
Procedure 60(b). In other words, the defendant waives the right to appeal
the sentence imposed in this case, except to the extent, if any, the Court
departs or varies upwards from the sentencing Guideline range that the
Court determines to be applicable. However, if the United States exercises
its right to appeal the sentence imposed, as authorized by 18 U.S.C.
§ 3742(b), the defendant is released from this waiver and may appeal the
sentence received, as authorized by 18 U.S.C. § 3742(a). Notwithstanding
the forgoing waivers, the parties understand that the defendant in no way
waives any subsequent claims with regards to ineffective assistance of
counsel or prosecutorial misconduct.
Mot. to Enforce, Attach. C (Plea Agmt.) at 7-8.
In responding to the government’s motion, Singleton indicates that he wishes
to raise two issues on appeal: (1) that the district court misinterpreted some facts in
determining his sentence, and (2) that his counsel in district court was ineffective.
But Singleton concedes that his first appeal issue falls within the scope of his appeal
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waiver because his 120-month sentence fell within the applicable sentencing range
calculated by the district court. See id., Attach. B (Sent. Tr.) at 33-34.
As to his second issue, Singleton notes, correctly, that he preserved in his plea
agreement his right to raise claims of ineffective assistance of counsel. He
acknowledges, however, that “a defendant generally must raise claims of ineffective
assistance of counsel in a collateral proceeding, not on direct review” and that “[t]his
rule applies even where a 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). In conclusion, Singleton states that he
objects to any affirmative finding that his plea or his waiver was knowing
and voluntary. However, he 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 3.
Our independent review confirms that Singleton’s proposed issues for appeal
fall within the scope of his waiver or raise a claim of ineffective assistance of counsel
that he may not pursue on direct appeal, see United States v. Edgar, 348 F.3d 867,
869 (10th Cir. 2003) (stating rule, with “rare exception” not applicable here, that
ineffective-assistance claims must be brought in a collateral proceeding). The plea
agreement clearly sets forth the appeal waiver and states that it was knowing and
voluntary, and the district court discussed the waiver and confirmed Singleton’s
understanding of it during his change-of-plea hearing. Moreover, there is no
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evidence in the present record contradicting Singleton’s knowing and voluntary
acceptance of the waiver. Finally, there is also no indication in the present record
that enforcing the waiver would result in a miscarriage of justice as defined in Hahn,
359 F.3d at 1327.
The motion to enforce is granted and this appeal is dismissed.
Entered for the Court
Per Curiam
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