United States v. Sauceda , 407 F. App'x 353 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
January 19, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff!Appellee,
No. 10-2229
v. (D.C. No. 2:10-CR-00606-JEC-2)
(D. N.M.)
MARIO ALDO SAUCEDA,
Defendant!Appellant.
ORDER AND JUDGMENT *
Before TACHA, MURPHY, and O’BRIEN, Circuit Judges.
Mario Aldo Sauceda pleaded guilty to conspiracy to possess with the intent
to distribute less than five grams of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C), 846. The district court sentenced him to 188 months
in prison. In his plea agreement he waived his right to appeal his conviction or
*
This panel has determined unanimously 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 This order and judgment is not binding precedent, except under the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.
sentence, if the sentence was within the statutory maximum of thirty years, which
it was. Despite the appeal waiver, Mr. Sauceda filed a notice of appeal.
Relying on United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc)
(per curiam), the government has moved to enforce the appeal waiver.
Mr. Sauceda’s counsel has moved to withdraw and has filed an Anders response.
See Anders v. California, 386 U.S. 738, 744 (1967) (authorizing counsel to
request permission to withdraw where counsel conscientiously examines case and
determines that appeal would be wholly frivolous). Counsel states that there are
no nonfrivolous grounds for a direct appeal. Counsel recognizes that Mr. Sauceda
may want to raise an ineffective assistance of counsel claim, but that he must do
so in a collateral proceeding under 28 U.S.C. § 2255. See, e.g., United States v.
Ibarra-Coronel, 517 F.3d 1218, 1222 (10th Cir. 2008) (recognizing that claims of
ineffective assistance of trial counsel usually must be raised in collateral
proceedings).
Mr. Sauceda was given an opportunity to file a pro se response to the
motion to enforce. See Anders, 386 U.S. at 744. To date, he has not done so.
Under Anders, we have conducted an independent review of the plea
agreement, plea hearing transcript, sentencing hearing transcript, and motion to
enforce. See id. After doing so, we conclude that the requirements for enforcing
the appeal waiver have been satisfied: (1) this “appeal falls within the scope of
the waiver of appellate rights”; (2) Mr. Sauceda “knowingly and voluntarily
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waived his appellate rights”; and (3) “enforcing the waiver would [not] result in a
miscarriage of justice.” Hahn, 359 F.3d at 1425. As counsel indicates,
Mr. Sauceda may properly bring an ineffective assistance of counsel claim
concerning the negotiation of his appeal waiver in a collateral proceeding.
Accordingly, we GRANT the government’s motion to enforce the plea
agreement, GRANT counsel’s request to withdraw, and DISMISS the appeal.
ENTERED FOR THE COURT
PER CURIAM
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