United States v. Gonzales

Opinion

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

FOR THE TENTH CIRCUIT December 3, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-1309 (D.C. No. 1:19-CR-00027-RM-1) RICHARD ANGEL GONZALES, (D. Colo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, KELLY, and BACHARACH, Circuit Judges. _________________________________

This matter is before the court on the government’s motion to enforce the

appeal waiver in Richard Angel Gonzales’s plea agreement. We grant the

government’s motion and dismiss the appeal.1

Gonzales pleaded guilty to assault on a federal officer in violation of 18 U.S.C.

§ 111(a)(1) and (b), and the district court sentenced him to 77 months’ imprisonment.

Although his plea agreement contained a broad appeal waiver, Gonzales filed an

appeal. The government now seeks to enforce that waiver.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Although this appeal was consolidated with Appeal No. 20-1308 for procedural purposes, our disposition applies to the present appeal only. In reviewing a motion to enforce an appeal waiver, 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.” United

States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). The

miscarriage-of-justice exception applies: “[1] where the district court relied on an

impermissible factor such as race, [2] where ineffective assistance of counsel in

connection with the negotiation of the waiver renders the waiver invalid, [3] where

the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise

unlawful.” Id. at 1327 (internal quotation marks omitted).

In response to the government’s motion, Gonzales, through counsel,

acknowledges that the conditions under Hahn for enforcing the waiver are satisfied.

See Resp. at 2-3 (stating that “it cannot be contested that this appeal falls within the

scope of the appeal waiver in the plea agreement,” that “the record does not show any

evidence that Gonzales did not knowingly and voluntarily waive his appellate rights,”

and that “the district court did not rely upon an impermissible factor and the sentence

was within the statutory maximum”).2 He contends only that “[t]he record here is

insufficient to fully consider” whether Gonzales received ineffective assistance of

2 Gonzales does not contend “that the waiver is otherwise unlawful.” Hahn, 359 F.3d at 1327. We thus do not address this component of the miscarriage-of- justice exception. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005) (noting the court need not address an uncontested Hahn factor).

2 counsel. Id. at 3. He therefore requests that “dismissal of this appeal be without

prejudice to his asserting ineffective assistance of counsel in a later §2255 motion.”

Id. We have recognized that “a defendant must generally raise claims of ineffective

assistance of counsel in a collateral proceeding, not on direct review,” including

“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).

Based on the response from Gonzales’s counsel as well as our independent

review of the record, we grant the government’s motion to enforce the appeal waiver

and dismiss this appeal.

Entered for the Court Per Curiam