FILED
                                                                United States Court of Appeals
                                      PUBLISH                           Tenth Circuit

                     UNITED STATES COURT OF APPEALS January 15, 2019
                                                                   Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                      Clerk of Court
                            _________________________________

    UNITED STATES OF AMERICA,

         Plaintiff - Appellee,

    v.                                                     No. 17-2121

    MARVIN LOPEZ-AGUILAR,

         Defendant - Appellant.
                           _________________________________

                 Appeal from the United States District Court
                         for the District of New Mexico
          (D.C. Nos. 1:16-CV-00668-WJ-CG and 1:09-CR-02962-WJ-1)
                          _________________________________

Submitted on the briefs * :

James D. Tierney, Acting United States Attorney, and C. Paige Messec,
Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-
Appellee.

Benjamin A. Gonzales, Assistant Federal Public Defender, Albuquerque,
New Mexico, for Defendant-Appellant.
                      _________________________________

Before BACHARACH, BALDOCK, and EBEL, Circuit Judges.
                __________________________________




*
      Oral argument would not materially aid our consideration of the
appeal, so we have decided the appeal based on the briefs. See Order
(Nov. 2, 2018).
BACHARACH, Circuit Judge.
                  _________________________________

      This appeal grew out of a plea agreement in which the defendant

waived his right to collaterally challenge his conviction. Despite the

waiver, the defendant collaterally challenged the conviction under 28

U.S.C. § 2255. The district court dismissed the challenge without ruling on

the waiver, holding instead that the defendant’s underlying claim failed on

the merits. On appeal, the government defends this ruling, adding that we

should also affirm based on the defendant’s waiver of a collateral

challenge.

      The defendant doesn’t question the enforceability or applicability of

the waiver. Instead, he contends that the government forfeited the waiver

by failing to invoke it in district court. We reject this contention because

the government never had an opportunity to assert the waiver in district

court. As a result, we affirm based on the waiver. 1

1.    The defendant waived his right to collaterally challenge the
      conviction.

      The defendant pleaded guilty based on an agreement with the

government. The agreement included a waiver of the right to collaterally

challenge the conviction:



1
      Given the applicability of the waiver, we need not address the merits
of the defendant’s claim.

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     The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C.
     § 3742 afford a Defendant the right to appeal a conviction and
     the sentence imposed. Acknowledging that, the Defendant
     knowingly waives the right to appeal the Defendant’s
     conviction(s) and any sentence, including any order of
     restitution, within the statutory maximum authorized by law and
     imposed in conformity with this plea agreement. In addition, the
     Defendant agrees to waive any collateral attack to the
     Defendant’s conviction(s) pursuant to 28 U.S.C. § 2255, except
     on the issue of counsel’s ineffective assistance in negotiating or
     entering this plea or this waiver.

R., vol. II at 33 (emphasis added).

     Despite this waiver, the defendant collaterally challenged the

conviction by filing a motion under § 2255. The district court summarily

dismissed the motion on the merits without directing the government to

respond. The defendant appeals, and the government argues that we should

enforce the waiver of a collateral challenge.

     To enforce a waiver of a collateral challenge, we consider three

elements: “(1) whether the issue appealed or challenged falls within the

scope of the text of the waiver; (2) whether the waiver was knowingly and

voluntarily entered into; and (3) whether enforcing the waiver would result

in a miscarriage of justice.” United States v. Pinson, 

, 975

(10th Cir. 2009) (citing United States v. Hahn, 

, 1325 (10th

Cir. 2004) (en banc)). The government asserts that each element is met, and

the defendant does not argue to the contrary. Given the absence of a

challenge to the presence of the three elements, we conclude that the

defendant waived his right to collaterally challenge the conviction.

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2.    The government timely invoked the waiver.

      Though the defendant does not challenge the enforceability or

applicability of the waiver, he argues that

           the government forfeits invocation of the waiver by failing to
            assert it in the first instance and

           the government should have invoked the waiver in district
            court.

The defendant thus contends that the government forfeited its opportunity

to invoke the waiver. We disagree.

      We have recognized that

           waivers benefit the government by “saving the costs” of
            prosecuting further litigation and

           such litigation should be efficiently and summarily dismissed
            for “the government [to] receive the benefit of its bargain.”

United States v. Hahn, 

, 1325 (10th Cir. 2004) (en banc). But

we have also recognized that the government can forfeit waivers by failing

to enforce them. See United States v. Calderon, 

, 930–31 (10th

Cir. 2005) (declining to enforce an appellate waiver after the government

declined the court’s invitation to respond); see also United States v.

Parker, 

, 786 (10th Cir. 2013) (recognizing the government’s

obligation to invoke waivers). We can assume, for the sake of argument,

that the government forfeits invocation of the waiver by failing to assert it

in district court when given an opportunity to do so. But the government



                                      4
never had an opportunity to assert the waiver when the case was in district

court.

         In the § 2255 proceedings, the district court had two options: It could

summarily dismiss the defendant’s motion or order a response. See Rule

4(b), Rules Governing Section 2255 Proceedings in the U.S. District

Courts. Until the court ordered a response, the government didn’t need to

file one. See Rule 5(a), Rules Governing Section 2255 Proceedings in the

U.S. District Courts (“The respondent is not required to answer the

[§ 2255] motion unless a judge so orders.”). Thus, if the district court did

not order the government to respond to the § 2255 motion, the government

could raise the waiver for the first time in the appeal. See Remington v.

United States, 

, 77 (1st Cir. 2017) (“Under Rule 5(a) . . . the

government did not lose its right to object to Remington’s § 2255 motion

for the simple reason that the District Court never ordered the government

to answer Remington’s motion.”); cf. Wiggins v. New Mexico State Supreme

Court Clerk, 

, 817 (10th Cir. 1981) (holding that when a

complaint is dismissed sua sponte before the government responds, the

government doesn’t waive the right to later assert affirmative defenses).

         Here the district court summarily dismissed the motion rather than

order a response. Given the summary dismissal, the government had no

opportunity to invoke the waiver in district court. So the government can

invoke the waiver here.

                                         5
                                    * * *

      The government timely asserted the waiver, and the defendant does

not question its enforceability or applicability. We therefore affirm the

district court’s summary dismissal of the defendant’s § 2255 motion.




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