UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JENIFER ADRIANA LOPEZ-RAMIREZ, Defendant - Appellant. No. 20-1281 (D.C. No. 1:19-CR-00285-RM-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before McHUGH , MORITZ , and CARSON , Circuit Judges.

________________ _________________ This matter is before the court on th e government’s motion to enforce the appeal waiver in Jenifer Adriana Lopez- Ramirez’s plea agreement. We grant the government’s motion and dismiss the appeal. Lopez-Ramirez pled guilty to two counts of bank robbery, in violation of 18 U.S.C. § 2113(a), and two counts of posse ssion of a firearm dur ing and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court sentenced her to five years’ concurrent imprisonment on the two bank-robbery counts

* This order and judgment is not bi nding 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 

### March 10, 2021 Christopher M. Wolpert Clerk of Court2 and seven years’ consecutive imprisonment on each of the two § 924(c) counts for a total of nineteen years. Lopez-Ramirez seeks to ch allenge the district cour t’s acceptance of her plea agreement and her sentence thr ough this appeal. But she ag reed to a broad waiver of appellate rights in the following portion of her plea agreement: “[T]he defendant knowingly and volunt arily waives the right to appeal any matter in connection with this prosecution, conviction, or sentence unless it meets one of the following criteria: (1) the sentence exceeds the maximum penalty provided in th e statute of conviction; (2) the sentence on the bank robbery count s exceeds the advisory guideline range that applies to a total offense level of 28; or (3) the government appeals the sentence imposed. Mot. to Enforce Appeal Wa iver Attach. 1 at 2. The government has moved to enforce the appeal waiver in the plea agreement under United States v. Hahn , 359 F.3d 1315, 1328 (10t h Cir. 2004) (en banc ) (per curiam). 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 misca rriage of justice.” Id . at 1325. The government asserts that all of the Hahn conditions have been satisfied: (1) L opez-Ramirez’s appeal is within the scope of the appeal waiver because her sentence did not exceed the statutory maximum, her sentence on the bank-robbery counts did no t exceed the advisory guideline range applicable to an offense level of 28, and the government did not appeal; (2) she knowingly and voluntarily waived her appella te rights; and (3) enforcing the waiver would not result in a misc arriage of justice.3 Lopez-Ramirez’s counsel filed a motion to withdr aw and a response citing Anders v. California , 386 U.S. 738, 744 (1967), that said he could identify no non-frivolous argument to oppose the government’s motion. We gave Lopez-Ramirez the opportunity to re spond to her counse l’s submission. See id. She did so, noting her belief that her plea agreem ent preserved her right to appeal based on ineffective assistance of counsel. And she outlined the basis for her ineffective assistance of counsel claim, which relates to her trial c ounsel’s conduct in connection with the sentencing hearing and not to he r trial counsel’s conduc t in negotiating the plea agreement. 1 Lopez-Ramirez misconstrues the appeal wa iver in her plea ag reement. She did not preserve a right to pursue a direct a ppeal based on ineffective assistance of counsel. But her plea agreement stated th at her appeal waiver “does not prevent [Lopez-Ramirez] from seeking relief otherwis e available in a coll ateral attack” on the grounds that she “was deprived of the effe ctive assistance of couns el.” Mot. Attach. 1 at 3. This was proper. “Ineffective assistance of couns el claims should be brought in collateral proceedings, not on direct appeal . Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed.” United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 199 5) (en banc). To the extent Lopez-Ramirez seeks to bring a claim of in effective assistance of counsel, she should do so in a collateral proceeding.

1 “[I]neffective assistance of counsel in connection with th e negotiation of [an appeal] waiver” can be grounds for refu sing to enforce the appeal waiver. Hahn , 359 F.3d at 1327 (internal quot ation marks omitted).4 Based on our independent review of the record, we conclude that the Hahn conditions are satisfied in th is case. We therefore gran t the government’s motion and dismiss the appeal. We do so, however, w ithout prejudice to Lopez-Ramirez’s right to pursue post-conviction relief on the gr ounds permitted in her plea agreement. We grant Gregory Stevens’s moti on to withdraw as counsel.

Entered for the Court Per Curiam