United States v. Rojas-Alvarado ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 6, 2014
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 13-1412
(D.C. No. 1:12-CR-00420-MSK-1)
JESUS ROJAS-ALVARADO, (D. Colo.)
a/k/a “Santos Acevedo-Flores,”
a/k/a “Chuy,”
Defendant-Appellant.
ORDER AND JUDGMENT*
Before TYMKOVICH, O’BRIEN, and HOLMES, Circuit Judges.
After entering into a plea agreement that included a waiver of his right to
appeal, Jesus Rojas-Alvarado pleaded guilty to three counts: one count of conspiracy
to possess with intent to distribute and distribution of 500 grams or more of a mixture
or substance containing a detectable amount of methamphetamine, in violation of
*
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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; one count of possession with intent to
distribute 500 grams or more of a quantity of a mixture and substance containing a
detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A); and one count of possessing a firearm in furtherance of a drug-trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A). The district court imposed a
sentence of 180 months’ imprisonment for the drug counts and a consecutive
sentence of 60 months’ imprisonment on the gun count. Mr. Rojas-Alvarado
appealed. The government has moved to enforce the appeal waiver under United
States v. Hahn, 359 F.3d 1315, 1325, 1328 (10th Cir. 2004) (en banc) (per curiam).
Hahn sets forth three factors to evaluate an appeal waiver: “(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.” Id. at 1325. In
response to the government’s motion, Mr. Rojas-Alvarado has not challenged the
government’s analysis of any of these factors. Instead, through counsel, he has
conceded that the appeal waiver is enforceable.
We need not consider a Hahn factor that a defendant does not challenge.
See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005). Nevertheless, our
independent review of the record confirms that each of the factors is satisfied. To the
extent that Mr. Rojas-Alvarado wishes to pursue a claim of ineffective assistance of
counsel, as indicated by his docketing statement, he should do so in a collateral
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proceeding under 28 U.S.C. § 2255. See Porter, 405 F.3d at 1144 (“[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.” (internal
citation omitted)); Hahn, 359 F.3d at 1327 n.13 (noting it did not disturb the
longstanding rule that ineffective assistance claims must generally be brought in
collateral proceedings).
The motion to enforce is granted and this matter is dismissed.
Entered for the Court
Per Curiam
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