United States v. Fuller , 474 F. App'x 753 ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 15, 2012
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-6100
(D.C. No. 5:11-CR-00283-C-2)
REBECCA A. FULLER, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, O’BRIEN and HOLMES, Circuit Judges.
Rebecca A. Fuller pleaded guilty to possession of pseudoephedrine knowing
that it would be used to manufacture methamphetamine, in violation of 21 U.S.C.
§ 841(c)(2). The district court sentenced her to 121 months in prison. By plea
agreement, Ms. Fuller waived the right to appeal her conviction or sentence unless
her sentence exceeded the advisory guideline range. The advisory guideline range
*
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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
was 121 to 151 months in prison. Notwithstanding the appeal waiver, Ms. Fuller
filed a notice of appeal.
The government has moved to enforce the appeal waiver under United States
v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Ms. Fuller’s counsel
filed a response stating that the only arguable nonfrivolous issue presented in the
record is ineffective assistance of trial counsel in negotiating the appeal waiver. That
argument, however, should be raised in a collateral proceeding under 28 U.S.C.
§ 2255, rather than on direct appeal, since the district court has not had an
opportunity to develop the factual record on the issue. See, e.g., United States v.
Ibarra-Coronel, 517 F.3d 1218, 1222 (10th Cir. 2008) (recognizing claim of
ineffective assistance of trial counsel usually must be raised in collateral proceeding);
Hahn, 359 F.3d at 1327 & n.13 (recognizing ineffective assistance of counsel as
exception to enforcing appellate waiver, but reiterating longstanding rule that such
claims are generally properly considered on collateral review).
Nonetheless, we have conducted an independent review of the plea agreement,
change of plea hearing transcript, sentencing hearing transcript, and motion to
enforce. After doing so, we conclude that the requirements for enforcing the plea
waiver at this time have been satisfied: (1) this “appeal falls within the scope of the
waiver of appellate rights;” (2) Ms. Fuller “knowingly and voluntarily waived [her]
appellate rights;” and (3) “enforcing the waiver would [not] result in a miscarriage of
justice.” Hahn, 359 F.3d at 1325. As her counsel states, Ms. Fuller may properly
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bring an ineffective assistance of counsel claim concerning the negotiation of her
appeal waiver in a collateral proceeding.
We GRANT the government’s motion to enforce the plea agreement and
DISMISS the appeal.
Entered for the Court
Per Curiam
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