UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

VYSEAN LEANDRE EMBRY, a/k/a “V,” 

a/k/a “Vy,” a/k/a “Hollywood,” 

 Defendant - Appellant. 

No. 16-5175 

(D.C. No. 4:15-CR-00133-GKF-1) 

(N.D. Okla.) 

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ORDER AND JUDGMENT*

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Before HARTZ, MATHESON, and BACHARACH, Circuit Judges. 

_________________________________ 

Vysean Embry accepted a plea agreement and pleaded guilty to conspiracy to 

distribute crack cocaine in violation of 21 U.S.C. § 846. He was sentenced to a total 

term of 180 months’ imprisonment, which is within his guideline range of 168 to 210 

months and beneath the statutory minimum of 20 years. Although the plea agreement 

contained an appeal waiver, Mr. Embry appealed. The United States moves to 

dismiss the appeal for lack of jurisdiction and to enforce the appeal waiver under 

United States v. Hahn, 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). 

 *

 This order and judgment is not binding precedent, except under the doctrines 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

June 6, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

Mr. Embry’s counsel responded with a motion to withdraw and a brief 

pursuant to Anders v. California, 386 U.S. 738, 744 (1967), stating that he could 

identify no non-frivolous argument to oppose the government’s motion. We gave 

Mr. Embry the opportunity to respond to his counsel’s submission, see id., but we 

received nothing from him. The docketing statement reveals that “Mr. Embry wants 

to assert counsel was ineffective and also to appeal the length of his sentence.” 

Docketing Statement at 4. 

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.” 359 F.3d at 1325. Our independent review of the 

record, see Anders, 386 U.S. at 744, does not reveal any non-frivolous arguments 

regarding the enforceability of the waiver. 

First, we consider the scope of the waiver. Hahn, 359 F.3d at 1325. The plea 

agreement provides that Mr. Embry “waives the right to directly appeal [his] 

conviction and sentence . . . except that [he] reserves the right to appeal from a 

sentence that exceeds the statutory maximum.” Mot. Ex. 1 at 3. Mr. Embry’s 

180-month sentence was well under the lifetime statutory maximum sentence for his 

crime, so this waiver covers any arguments he might want to make about the length 

of his sentence. 

We next consider whether the waiver was knowing and voluntary. Hahn, 

359 F.3d at 1325. In evaluating this factor, we generally examine the language of the 
3 

plea agreement and the adequacy of the Fed. R. Crim. P. 11 plea colloquy. Id. It is 

Mr. Embry’s burden “to provide support for the notion that he did not knowingly and 

voluntarily enter into his plea agreement.” Id. at 1329. 

The plea agreement represented that the plea was voluntary and not the result 

of any force, threats, or promises not disclosed therein. In addition, the waiver 

paragraph represents that the appeal waiver was knowingly accepted. And just 

before his final signature, Mr. Embry again acknowledged that no extraneous 

promises or inducements were made, nor were any threats or force employed. 

Similarly, during the plea colloquy Mr. Embry informed the district court that he was 

pleading guilty of his own free will, not due to any extraneous promises or force. He 

indicated his understanding that the court could sentence him to more than twenty 

years in prison. The district judge summarized and explained the appeal waiver, 

confirming that Mr. Embry waived the right to appeal his convictions and sentence, 

except as to a sentence exceeding the statutory maximum. After asking for and 

receiving clarification, Mr. Embry confirmed his understanding of the judge’s 

explanation. In short, this record fails to support any non-frivolous argument that the 

waiver was not knowing and voluntary. 

Finally, we consider whether enforcing the waiver would result in a 

miscarriage of justice. Id. at 1325, 1327. A miscarriage of justice occurs “[1] where 

the district court relied on an impermissible factor such as race, [2] where ineffective 

assistance of counsel in connection with the negotiation of the waiver renders the 

waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4] where 
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the waiver is otherwise unlawful.” Id. at 1327 (internal quotation marks omitted). 

None of these conditions is apparent from the record before the court. We recognize 

that defendants often allege ineffective assistance of counsel. But even if Mr. Embry 

is dissatisfied with his counsel’s performance in connection with the waiver, 

allegations of ineffective assistance generally should be raised in a 28 U.S.C. § 2255 

proceeding rather than on direct appeal. See United States v. Galloway, 56 F.3d 

1239, 1240 (10th Cir. 1995) (en banc). “This 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); accord Hahn, 

359 F.3d at 1327 n.13. 

For these reasons, we determine that it is “wholly frivolous” for Mr. Embry to 

oppose the motion to enforce the appellate waiver in his plea agreement in this direct 

appeal. Anders, 386 U.S. at 744. The motion to enforce is granted, and this matter is 

dismissed. 

Entered for the Court 

Per Curiam