United States v. Norton , 667 F. App'x 286 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 15, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-2029
(D.C. No. 1:13-CR-03527-MV-1)
DONALD NORTON, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, HOLMES, and MATHESON, Circuit Judges.
_________________________________
Following his acceptance of a plea agreement that included a waiver of his
right to appeal, Donald Norton pleaded guilty to aggravated sexual abuse in violation
of 18 U.S.C. § 2241(a). He was sentenced to 275 months’ imprisonment. Despite his
waiver, Norton filed an appeal. The government has moved to enforce Norton’s
appeal waiver. See United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004)
(en banc) (per curiam).
*
This panel has determined unanimously that oral argument would not
materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law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.
In evaluating a motion to enforce a waiver, we consider: “(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. Norton’s
counsel has filed a response, “conced[ing] that, under the standard announced in
[Hahn], the plea agreement’s appeal waiver is enforceable with respect to this direct
appeal.” Aplt. Resp. at 1. Norton reserved the right to assert an
ineffective-assistance claim in a 28 U.S.C. § 2255 proceeding.
Our independent review confirms that Norton’s appeal waiver is enforceable.
The issue he seeks to raise—ineffective assistance of counsel—cannot be brought on
direct appeal. See United States v. Novosel, 481 F.3d 1288, 1294 (10th Cir. 2007)
(holding ineffective-assistance claims must be brought in a collateral proceeding
even where defendant seeks to invalidate an appellate waiver on that basis). The plea
agreement also clearly sets forth the appeal waiver and states that it was knowing and
voluntary, and the district court confirmed Norton’s understanding of his appeal
waiver during his change of plea hearing. Moreover, we see no evidence
contradicting Norton’s knowing and voluntary acceptance of the appeal waiver.
Finally, there is no indication that enforcing the waiver would result in a miscarriage
of justice as defined in Hahn, 359 F.3d at 1327.
The motion to enforce is granted and this matter is dismissed.
Entered for the Court
Per Curiam
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