United States v. Carnero

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 26, 2020
• Docket: 19-6183
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 26, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-6183 (D.C. No. 5:18-CR-00244-D-1) SALVADOR CARNERO, SR., (W.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MORITZ, KELLY, and CARSON, Circuit Judges. _________________________________

Salvador Carnero, Sr. pleaded guilty to distributing five or more grams of

methamphetamine. The district court sentenced him to 78 months’ imprisonment, a

downward variance from the advisory guideline range of 108 to 135 months.

Although his plea agreement contained a waiver of his right to appeal, he filed a

notice of appeal. The government then filed a motion to enforce the appeal waiver in

the plea agreement pursuant to United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir.

2004) (en banc) (per curiam).

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. In response to the government’s motion, counsel for Mr. Carnero filed a brief

in accordance with Anders v. California, 386 U.S. 738 (1967), and stated that it

would be wholly frivolous to oppose the government’s motion to enforce. See

Anders, 386 U.S. at 744 (explaining that “if counsel finds his [client’s] case to be

wholly frivolous, after a conscientious examination of it, he should so advise the

court”). Counsel also filed a motion to withdraw. We then gave Mr. Carnero an

opportunity to file a pro se response to the motion to enforce. See id. (directing that

time be allowed for the defendant “to raise any points that he chooses”). The filing

deadline has passed and, to date, he has not filed a response. Anders explains that the

court should “then proceed[], after a full examination of all the proceedings, to

decide whether the case is wholly frivolous.” Id. We have reviewed the motion to

enforce, the plea agreement, the transcripts of the change-of-plea and sentencing

hearings, and counsel’s Anders brief. Based on our review of the proceedings, we

agree that there is no non-frivolous basis to contest the motion to enforce.

We conclude that Mr. Carnero’s appeal of his sentence is within the scope of

the appeal waiver in his plea agreement; he knowingly and voluntarily waived his

appellate rights; and enforcing the waiver would not result in a miscarriage of justice.

See Hahn, 359 F.3d at 1325 (describing the factors this court considers when

determining whether to enforce a waiver of appellate rights). Accordingly, we grant

the motion to enforce the appeal waiver, grant counsel’s motion to withdraw, and

dismiss the appeal. We note that this dismissal is without prejudice to Mr. Carnero

2 filing a motion for relief under 28 U.S.C. § 2255 to raise a claim for ineffective

assistance of counsel consistent with the terms of his plea agreement.1

Entered for the Court Per Curiam

1 In his Anders brief, counsel for Mr. Carnero identified one potential basis for avoiding the appeal waiver—ineffective assistance of counsel. But counsel also correctly recognized that our precedent forecloses consideration of such an argument on direct appeal, see United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005) (“[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 defendant seeks to invalidate an appellate waiver based on ineffective assistance of counsel.” (citation omitted)).