United States v. Landours

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 20, 2024
• Docket: 23-2131
• Status: Unpublished

Opinion

Appellate Case: 23-2131 Document: 010111002477 Date Filed: 02/20/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 20, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-2131 (D.C. No. 1:22-CR-00451-KWR-1) ISAAC LANDOURS, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, BRISCOE, and EID, Circuit Judges. _________________________________

Isaac Landours pleaded guilty to one count of distribution of 5 grams or more

of methamphetamine. He was anticipating his sentencing guidelines range would be

97 to 121 months in prison, but the presentence report applied the career offender

enhancement and determined his sentencing guidelines range was 188 to 235 months

in prison. Mr. Landours’s plea agreement contained a broad waiver of his right to

appeal his sentence. Despite this waiver, Mr. Landours seeks to appeal the district

court’s finding that a state conditional discharge was a conviction for purposes of

calculating his criminal history and imposing the career offender enhancement. The

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-2131 Document: 010111002477 Date Filed: 02/20/2024 Page: 2

government filed a motion to enforce the appeal waiver pursuant to United States v.

Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc). We grant the government’s

motion and dismiss the appeal.

Under Hahn, we consider the following three factors in determining whether to

enforce an appeal waiver in a plea agreement: (1) does the disputed appeal fall

within the scope of the waiver; (2) was the waiver knowing and voluntary; and

(3) would enforcing the waiver result in a miscarriage of justice. Id. at 1325.

Mr. Landours concedes his appeal falls within the scope of his waiver and his waiver

was knowing and voluntary. He argues only that enforcing the waiver would result

in a miscarriage of justice.

In Hahn, we held enforcement of an appeal waiver does not result in a

miscarriage of justice unless it would result in one of four enumerated situations.

359 F.3d at 1327. Those four situations are: “[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. (internal quotation marks omitted). Mr. Landours contends enforcing

his appeal waiver would result in a miscarriage of justice because his trial counsel

was constitutionally ineffective in negotiating his waiver.

Mr. Landours acknowledges our general rule that a claim of ineffective

assistance of counsel must be raised in a collateral proceeding, not on direct review.

And he further acknowledges that this “rule applies when a defendant ‘seeks to

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invalidate an appellate waiver based on ineffective assistance of counsel.’” Aplt.

Resp. to Mot. at 9 (quoting United States v. Porter, 405 F.3d 1136, 1144

(10th Cir. 2005)).

He argues, however, that his case presents an exception to the general rule

based on his assertion that “the record is sufficiently developed as to trial counsel’s

deficiencies.” Id. at 11. But he admits this court has only considered ineffective

assistance of counsel claims on direct appeal in cases “‘where the issue was raised

before and ruled upon by the district court and a sufficient factual record exists.’” Id.

at 9 (quoting United States v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011)). And he

concedes his case is distinguishable from those cases because he did not raise an

ineffective assistance of counsel claim below so “the district court has not ruled on

such a claim.” Id. at 11. He thus acknowledges “[t]he weight of the authority in this

circuit suggests that this situation must result in the enforcement of the plea waiver.”

Id. But he asks this court “to consider alternatives” because the significant disparity

between the anticipated and recommended sentencing ranges “presents a manifest

injustice.” Id.

Although Mr. Landours insists “the ineffective assistance of trial counsel in

negotiating the appeal waiver is apparent from the record,” id. at 16, we decline to

expand the exception to include claims that were not presented first and ruled on in

the district court. See United States v. Galloway, 56 F.3d 1239, 1240

(10th Cir. 1995) (en banc) (declining to consider ineffective assistance of counsel

claim raised for the first time on direct appeal because “even if the record appears to

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need no further development, the claim should still be presented first to the district

court in collateral proceedings . . . so the reviewing court can have the benefit of the

district court’s views”). Accordingly, we grant the government’s motion to enforce

the appellate waiver in Mr. Landours’s plea agreement and dismiss this appeal.

Entered for the Court

Per Curiam