United States v. Ramirez

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 7, 2014
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 13-6158
(D.C. No. 5:12-CR-00090-R-1)
NICHOLAS JOSEPH RAMIREZ, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before TYMKOVICH, GORSUCH, and PHILLIPS, Circuit Judges.
Defendant-Appellant Nicholas Joseph Ramirez pleaded guilty to conspiracy to
possess with intent to distribute and to distribute several controlled substances in
violation of 21 U.S.C. § 846 and § 841(b)(1)(C), and money laundering in violation
of 21 U.S.C. § 1956(a)(1) and (h). Although his plea agreement included a broad
waiver of appellate rights, he brought this appeal to challenge his conviction on the
*
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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
ground that his counsel rendered constitutionally deficient assistance in connection
with his plea. 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),
and counsel for Mr. Ramirez has filed a response opposing the motion. We grant the
government’s motion and dismiss the appeal, though we do so without prejudice to
any post-conviction motion Mr. Ramirez may file under 28 U.S.C. § 2255 raising the
ineffective-assistance claim he has attempted to assert here.
Mr. Ramirez expressly waived his right to appeal “his guilty plea, sentence
and restitution imposed, and any other aspect of his conviction.” Dist. Ct. Doc. 365,
at 9. As the government notes in its motion, that waiver encompasses a claim of
ineffective assistance challenging his conviction or sentence. See United States v.
Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001). But if such a claim “challeng[es]
the validity of the plea or the waiver” itself, the waiver is ineffective. Id. It is solely
on this basis that Mr. Ramirez opposes the government’s motion.
Mr. Ramirez’s ineffective-assistance claim is that counsel improperly advised
him to plead guilty in this case without ensuring—either by timing or through a
combined negotiation—that the resultant conviction here would not provide the basis
for a significantly enhanced sentence in a concurrent prosecution in the United States
District Court for the Eastern District of California. Without expressing any opinion
as to the potential merit of such a claim, we do agree with Mr. Ramirez that this
challenge to the adequacy of counsel’s representation in plea negotiations appears to
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be a challenge to the validity of his guilty plea within the meaning of our Cockerham
decision.
But that is not the end of the matter. As our precedent makes clear, claims of
ineffective assistance should in almost all cases be raised in collateral proceedings
under § 2255; if “brought on direct appeal [they] are presumptively dismissible, and
virtually all will be dismissed.” United States v. Galloway, 56 F.3d 1239, 1240
(10th Cir. 1995) (en banc). And “[t]his rule applies even where a defendant seeks to
invalidate an appellate waiver based on ineffective assistance of counsel.” United
States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005). Thus, absent extraordinary
circumstances permitting an ineffective-assistance claim to be brought on direct
appeal, when such a claim is raised to circumvent an appeal waiver the appropriate
course is to dismiss the claim (leaving the appeal waiver in force) but preserve the
defendant’s right to pursue the claim on collateral review under § 2255. See, e.g.,
United States v. Polly, 630 F.3d 991, 1003 (10th Cir. 2011).
Accordingly, the proper result here comes down to whether this is the rare case
where an ineffective-assistance claim may properly be brought on direct appeal. We
conclude it is not. “[T]his court has considered ineffective assistance of counsel
claims on direct appeal in limited circumstances, but only where the issue was raised
before and ruled upon by the district court and a sufficient factual record exists.”
United States v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011). As the emphasized
conjunction in Flood points up, both of these conditions must be satisfied before this
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court will hear an ineffective-assistance claim on a direct criminal appeal, and here
the former is undeniably wanting (the latter is also likely unmet, but we need not
pursue the matter). The district court, which “should have an advantageous
perspective for determining the effectiveness of counsel’s conduct and whether any
deficiencies were prejudicial,” Polly, 630 F.3d at 1003, has thus far had no occasion
to address Mr. Ramirez’s ineffective-assistance claim. Consequently, the claim
“must be dismissed without prejudice as improperly raised on direct appeal.” Id. As
that claim is the only basis for Mr. Ramirez’s opposition to the government’s motion
to enforce his appeal waiver, we grant the motion.
The government’s motion to enforce defendant-appellant’s appeal waiver is
granted and the appeal is dismissed. This disposition is without prejudice to any
motion Mr. Ramirez may bring under § 2255 asserting the ineffective-assistance
claim he has improperly asserted on this appeal.
Entered for the Court
Per Curiam
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