UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. VYSEAN LEANDRE EMBR Y, 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.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , MATHESON , and BACHARACH , Circuit Judges.

________________ _________________ Vysean Embry accepted a plea agreement and pleaded guilty to conspiracy to distribute crack cocaine in vi olation of 21 U.S.C. § 846. He was sentenced to a total term of 180 months’ imprisonment, which is within his guideline ra nge 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 jurisdicti on 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* This order and judgme nt is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt 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 Court2 Mr. Embry’s counsel res ponded 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 respon d to his counsel’s submission, see id. , but we received nothing from him. The docketing st atement reveals that “Mr. Embry wants to assert counsel was ineffe ctive and also to appeal th e length of his sentence.” Docketing Statement at 4. Under Hahn , we consider “(1) whether the di sputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; a nd (3) whether enforcing the waiver would result in a miscarriag e of justice.” 359 F.3d at 1325. Our independent review of the record, see Anders , 386 U.S. at 744, does not rev eal any non-frivolous arguments regarding the enforceab ility of the waiver. First, we consider the scope of the waiver. Hahn , 359 F.3d at 1325. The plea agreement provides that Mr. Embry “waive s the right to dir ectly appeal [his] conviction and sentence . . . except that [h e] 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 life time 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 waiv er was knowing and voluntary. Hahn , 359 F.3d at 1325. In evaluating this factor , we generally examin e the language of the3 plea agreement and the adequacy of th e 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 th e plea was voluntary and not the result of any force, threats, or pr omises 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 coll oquy Mr. Embry informed the di strict 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 summ arized 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 st atutory maximum. After asking for and receiving clarification, Mr. Embry c onfirmed his understanding of the judge’s explanation. In short, this record fail s to support any non-frivol ous argument that the waiver was not kno wing and voluntary. Finally, we consider whether enforc ing 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 th e sentence exceeds th e statutory maximum, or [4] where4 the waiver is otherwise unlawful.” Id. at 1327 (internal quota tion marks omitted). None of these conditions is apparent from the record befo re the court. We recognize that defendants often allege ineffective assist ance of counsel. Bu t even if Mr. Embry is dissatisfied with his counsel’s performance in c onnection with the waiver, allegations of ineffective as sistance generally should be ra ised 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 appella te waiver based on ineffectiv e 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 enfor ce is granted, and this matter is dismissed.

Entered for the Court Per Curiam