United States v. Alvarez

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 1, 2023
• Docket: 22-2095
• Status: Unpublished

Opinion

Appellate Case: 22-2095 Document: 010110806536 Date Filed: 02/01/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 1, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-2095 (D.C. No. 2:20-CR-01719-KG-1) JUAN MIGUEL ALVAREZ, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, BACHARACH, and CARSON, Circuit Judges. _________________________________

Juan Miguel Alvarez pleaded guilty to production of child pornography and

received a 262-month prison sentence. He has appealed from that sentence despite

the appeal waiver in his plea agreement. The government now moves to enforce that

waiver under United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc).

Alvarez has filed a response through counsel.

When deciding a motion to enforce an appeal waiver, we normally ask:

“(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

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-2095 Document: 010110806536 Date Filed: 02/01/2023 Page: 2

rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.”

Id. at 1325. But we need not address a Hahn factor the defendant does not dispute.

See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005).

In this case, Alvarez’s response does not address any Hahn factor. Rather,

Alvarez concedes that “this direct appeal must be dismissed,” Resp. at 2, although

not on account of his appeal waiver. He says instead that he intended to bring a

claim for ineffective assistance of counsel but “the precedent of this Court effectively

prohibits assertion of ineffective assistance of counsel on direct appeal.” Id. So, for

that reason, he does not oppose dismissal. But he says that he “specifically preserves

his right to collaterally attack his sentence and conviction based on either ineffective

assistance of counsel or material misrepresentations by the government.” Id.

We will not address whether Alvarez could have brought an ineffective-

assistance claim on direct appeal, nor do we express any opinion on whether

Alvarez’s plea agreement permits him to bring a collateral attack on either of the

bases he has described. We hold only that Alvarez has conceded the government’s

motion by failing to address any Hahn factor. For that reason, we grant the

government’s motion to enforce, and we dismiss this appeal.

Entered for the Court Per Curiam