FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 12, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-1175
(D.C. No. 1:15-CR-00206-WJM-2)
DONALD LEONARD RIESTERER, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
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Before KELLY, HOLMES, and McHUGH, Circuit Judges.
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Pursuant to a plea agreement, Donald Riesterer pled guilty to wire fraud, for
which he received a thirty-month sentence. The agreement included a broad appeal
waiver, encompassing, with few exceptions not relevant here, “any matter in
connection with this prosecution, conviction, or sentence.” Dist. Ct. doc. 158, at 3.
When Mr. Riesterer filed this appeal, the government moved to enforce the waiver.
As explained below, we grant the government’s motion and dismiss the appeal.
We also deny Mr. Riesterer’s request for bail pending appeal as moot.
*
After examining the briefs and appellate record, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
A little procedural background will frame the issues before us. Mr. Riesterer
executed the plea agreement and entered his plea on August 3, 2016. At that point,
the parties disagreed as to the extent of the losses he had caused, which would affect
his offense level, so the district court scheduled an evidentiary hearing for December
1, 2016. After the hearing, the district court made findings adverse to Mr. Riesterer
regarding the losses. In addition, the court found he had perjured himself and
attempted to influence a testifying witness at the hearing, prompting it to impose a
two-point enhancement to his offense level under United States Sentencing Guideline
Manual (USSG) § 3C1.1 for obstructing or impeding the administration of justice. It
also denied him an offense-level reduction he had sought for acceptance of
responsibility under USSG § 3E1.1.
Following the entry of final judgment, Mr. Riesterer filed a notice of appeal
and a motion for bail pending appeal. The district court denied the motion for lack of
likely merit to the appeal. It held that Mr. Riesterer had not raised a substantial
question about his conviction or sentence and that, in any event, the appeal waiver in
the plea agreement, which it found valid and enforceable, would likely bar his appeal.
Mr. Riesterer then sought bail from this court. Despite the district court’s focus on
the appeal waiver, Mr. Riesterer mentioned it only once—offhandedly remarking that
the “plea agreement contained a limited appeal waiver,” Mem. in Supp. of Mot. for
Bail (Bail Memo), at 1—and made no attempt to undercut the district court’s
conclusion that it would likely bar his appeal. The government filed a brief in
opposition to the bail motion and moved to enforce the appeal waiver.
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The government’s motion to enforce argues that the waiver applies to this
appeal, that it was knowing and voluntary, and that there are no circumstances
evident on the record to suggest that enforcement of the waiver would give rise to a
miscarriage of justice. See generally United States v. Hahn, 359 F.3d 1315, 1325
(10th Cir. 2004) (en banc) (per curiam) (summarizing three components of court’s
inquiry when enforcing appeal waiver). In response to the motion, Mr. Riesterer
does not dispute the first two points, but does argue that enforcement of the appeal
waiver would result in a miscarriage of justice.
A miscarriage of justice sufficient to invalidate an appeal waiver may be
shown if (1) the district court relied on an impermissible factor, such as race; (2) the
waiver was the result of ineffective assistance of counsel; (3) the district court
imposed a sentence that exceeds the statutory maximum; or (4) the waiver was
otherwise unlawful. United States v. Salas-Garcia, 698 F.3d 1242, 1255 (10th Cir.
2012). Mr. Riesterer invokes the second and fourth grounds to excuse his appeal
waiver.
As for the second ground, he claims his counsel failed to warn him that the
evidentiary hearing on loss would result in findings that could result in enhanced
penalties and be virtually impossible to challenge, and also misadvised him that he
could withdraw his plea if he was unhappy with the result of the hearing. Without
getting into the merit, if any, of these allegations, we hold they are not appropriate
for resolution on this direct appeal. Claims of ineffective assistance should in almost
all cases be raised in collateral proceedings under 28 U.S.C. § 2255; if “brought on
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direct appeal [they] are presumptively dismissible, and virtually all will be
dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)
(en banc). In particular, such claims are not available on direct appeal unless they
were “raised before and ruled upon by the district court and a sufficient factual
record exists.” United States v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011). “This
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). Absent circumstances permitting an ineffective-assistance claim to
be raised on direct appeal—which have not been alleged, much less demonstrated,
here—when such a claim is asserted to circumvent an appeal waiver, the appropriate
course is to dismiss the claim (leaving the appeal waiver in force) without prejudice
to the defendant’s right to pursue it on collateral review under § 2255. See, e.g.,
United States v. Polly, 630 F.3d 991, 1003 (10th Cir. 2011). We follow that course
here.
As for his contention that the waiver was otherwise unlawful, Mr. Riesterer
objects that the district court failed to warn him that his testimony could subject him
to additional penalties if the court determined that he perjured himself or attempted to
influence the testimony of another witness. This, he claims, “was a clear dereliction
of duty, was patently unjust, and resulted in a miscarriage of justice.” Resp. to Mot.
to Enforce at 3. He cites no authority for his tacit premise that a district court must
specifically admonish a defendant (who has already been placed under oath) that
perjury and witness tampering could result in a sentence enhancement for
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obstruction. We decline to adopt such a dubious premise—let alone hold that the
absence of such an admonishment constitutes a miscarriage of justice “seriously
affect[ing] the fairness, integrity or public reputation of judicial proceedings” so as to
negate an appeal waiver, Hahn, 359 F.3d at 1327 (internal quotation marks omitted).
On the contrary, it is the effort to obstruct justice that threatens the fairness, integrity
and public reputation of the proceedings.
Finally, Mr. Riesterer claims “[i]t was procedural error for the district court to
accept the plea agreement and the appeal waiver, but then set an evidentiary hearing
wherein [he] had no choice but to testify as to the appropriate loss amount.” Resp. to
Mot. to Enforce at 5. This alleged error, he contends, “undermined the integrity of
the proceedings and was patently unfair to [him].” Id. Once again, he presents a
perfunctory claim of procedural error without any supporting authority. We are
aware of no legal impediment to the district court proceeding as it did. Indeed,
acceptance of a plea followed by a hearing to determine material sentencing issues is
straightforward practice absent specific stipulations as to sentence in the plea
agreement.
The government’s motion to enforce Mr. Riesterer’s appeal waiver is granted
and the appeal is dismissed. Mr. Riesterer’s request for release pending appeal is
denied as moot.
Entered for the Court
Per Curiam
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