United States v. McAllister , 484 F. App'x 268 ( 2012 )


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  •                                                              FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS       Tenth Circuit
    FOR THE TENTH CIRCUIT                          June 13, 2012
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                       No. 12-5064
    (D.C. No. 4:11-CR-00177-CVE-1)
    RONALD PAUL MCALLISTER,                                  (N.D. Okla.)
    Defendant-Appellant.
    ORDER AND JUDGMENT*
    Before KELLY, EBEL, and MATHESON, Circuit Judges.
    Ronald Paul McAllister pleaded guilty to one count of bank robbery by force
    and violence and intimidation. He was sentenced to fifty-seven months in prison.
    Although his plea agreement contained a waiver of his appellate rights,
    Mr. McAllister has filed an appeal challenging his sentence. The government has
    *
    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    is not binding precedent, except under the doctrines of law of the case, res judicata,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.
    moved to enforce the appeal waiver under United States v. Hahn, 
    359 F.3d 1315
    (10th Cir. 2004) (en banc) (per curiam). We grant the motion and dismiss the appeal.
    Under Hahn, 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
    . The miscarriage-of-justice prong
    requires the defendant to show (a) his sentence relied on an impermissible factor such
    as race; (b) ineffective assistance of counsel in connection with the negotiation of the
    appeal waiver rendered the waiver invalid; (c) his sentence exceeded the statutory
    maximum; or (d) his appeal waiver is otherwise unlawful and the error “seriously
    affect[s] the fairness, integrity or public reputation of judicial proceedings.” 
    Id. at 1327
     (quotation omitted).
    Mr. McAllister filed a pro se notice of appeal in which he stated that he
    wanted to appeal his sentence on the ground that his attorney provided ineffective
    assistance of counsel in the sentencing process. Although Mr. McAllister filed a
    pro se notice of appeal, he is represented by counsel and his counsel has not filed a
    motion to withdraw. Mr. McAllister’s attorney filed a response to the government’s
    motion to enforce the appeal waiver, stating that there were no grounds to contest the
    motion.
    First, counsel explains that Mr. McAllister’s appeal falls within the scope of
    his appellate waiver because a claim for ineffective assistance of counsel in the
    -2-
    sentencing process does not fall within any of the exceptions to the appeal waiver.
    See Resp. at 3 (explaining that exception to the appeal waiver is limited to an
    ineffective-assistance claim challenging the validity of the guilty plea or the appeal
    waiver). Next, counsel states that he cannot dispute the government’s conclusion that
    Mr. McAllister’s appeal waiver was knowing and voluntary based on the plea
    colloquy and the language of the plea agreement. Finally, counsel states that he
    cannot dispute the government’s assertion that enforcing the waiver would not result
    in a miscarriage of justice.
    Counsel does, however, dispute the government’s assertion that there is
    nothing to indicate that Mr. McAllister has received ineffective assistance of counsel
    in connection with the negotiation of the appeal waiver. As counsel explains, such an
    argument is premature because the record has not been developed and it is the
    general rule in this circuit that ineffective-assistance claims should be brought on
    collateral review. See 
    id.
     at 5 (citing United States v. Porter, 
    405 F.3d 1136
    (10th Cir. 2005)). Counsel contends that, consistent with his plea agreement,
    Mr. McAllister retains the option to file a 
    28 U.S.C. § 2255
     motion claiming that he
    received ineffective assistance of counsel in connection with his guilty plea or appeal
    waiver.
    We agree with counsel that there is no basis for Mr. McAllister to contest the
    government’s motion to enforce. We also agree with counsel that the appeal waiver
    does not bar Mr. McAllister from seeking collateral review of a claim for ineffective
    -3-
    assistance of counsel in connection with his guilty plea or appeal waiver. See Porter,
    
    405 F.3d at 1144
    ; United States v. Cockerham, 
    237 F.3d 1179
    , 1187 (10th Cir. 2001).
    Accordingly, we GRANT the government’s motion to enforce the appeal waiver and
    DISMISS the appeal.
    Entered for the Court
    Per Curiam
    -4-
    

Document Info

Docket Number: 12-5064

Citation Numbers: 484 F. App'x 268

Judges: Ebel, Kelly, Matheson, Per Curiam

Filed Date: 6/13/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023