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

                           FOR THE TENTH CIRCUIT                         July 10, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                        No. 14-2186
                                                 (D.C. No. 5:13-CR-00325-JB-1)
JESUS JOSE ORNELAS-YANEZ,                                   (D. N.M.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, EBEL, and BACHARACH, Circuit Judges.


      The government has moved to enforce the plea agreement it entered into with

Jesus Jose Ornelas-Yanez. Mr. Ornelas-Yanez pleaded guilty pursuant to a written

plea agreement to possession with intent to distribute 500 grams or more of

methamphetamine. Under the terms of the plea agreement, he waived his right to

appeal his “conviction(s) and any sentence, including any fine, at or under the

maximum statutory penalty authorized by law.” Mot. to Enforce, Ex. 1, at 8, ¶ 13.


*
       This panel has determined that oral argument would not materially assist 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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
Mr. Ornelas-Yanez acknowledged in the plea agreement that the maximum prison

sentence the court could impose was “for a period of not less than 10 years nor more

than life imprisonment.” 

¶ 4.a. The court accepted the plea agreement and

sentenced Mr. Ornelas-Yanez to 121 months’ imprisonment, which was below the

statutory maximum. Despite the appeal waiver in his plea agreement,

Mr. Ornelas-Yanez filed an appeal.

      The government moved to enforce the appeal waiver pursuant to United States

v. Hahn, 

(10th Cir. 2004) (en banc) (per curiam). Hahn requires

enforcement of an appeal waiver if (1) “the disputed appeal falls within the scope of

the waiver of appellate rights”; (2) the defendant “knowingly and voluntarily waived

his appellate rights”; and (3) “enforcing the waiver would [not] result in a

miscarriage of justice.” 

The exception for miscarriage of justice applies

in only four situations: “[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.” 

      In his counselled response to the government’s motion, Mr. Ornelas-Yanez

argues that enforcement of the appeal waiver would result in a miscarriage of justice

because his trial counsel provided ineffective assistance in the negotiation of the

waiver. Specifically, he argues that, in light of the parties’ “vigorous dispute about

sentencing issues,” “effective counsel would have reserved Mr. Ornelas’s right to an


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appeal, rather than waive that right, which, if enforced, would preclude appellate

review of the sentencing issues.” Resp. to Mot. to Enforce at 2. Mr. Ornelas-Yanez

correctly notes that ineffective assistance in the negotiation of a plea agreement

cannot, itself, be waived in the plea agreement. See United States v. Cockerham,

, 1184 (10th Cir. 2001) (“[A] claim of ineffective assistance of counsel

in connection with the negotiation of a [plea] agreement cannot be barred by the

agreement itself.” (second alteration in original) (internal quotation marks omitted)).

      Nonetheless, “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.” United States v. Porter, 

, 1144 (10th Cir. 2005)

(citation omitted). This court will consider an ineffective-assistance-of-counsel

claim on direct appeal only in “rare instances,” such as “where the record is

sufficient, or where the claim simply does not merit further factual inquiry.” United

States v. Gordon, 

, 1570 (10th Cir. 1993). Mr. Ornelas-Yanez recognizes

this general principle, but argues that it would be “a far more efficient use of judicial

resources to remand for the limited purpose of developing a factual record on the

discrete and narrowly-circumscribed issue of ineffective assistance of counsel” than

to require Mr. Ornelas-Yanez to bring a claim for ineffective assistance of counsel in

a collateral proceeding. Resp. to Mot. to Enforce at 4-5. We see no reason to deviate




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from our general rule in this instance, however. So Mr. Ornelas-Yanez cannot raise

his claim of ineffective assistance of counsel on direct appeal.

      Mr. Ornelas-Yanez does not otherwise challenge the government’s motion to

enforce. He neither argues that his appellate issues are outside the scope of the

waiver nor that his waiver was not knowing and voluntary. We, therefore, need not

address these issues. See 

.

      The government’s Motion to Enforce Appellate Waiver in Plea Agreement is

granted, and the appeal is dismissed.

                                                Entered for the Court
                                                Per Curiam




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