UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff−Appellee, 

v. 

JESUS ANTONIO 

MENDEZ−MONTOYA, 

 Defendant−Appellant. 

No. 13-2184 

(D.C. No. 2:13-CR-02125-JTM-1) 

(D. N.M.)

 

ORDER AND JUDGMENT*

 

Before HARTZ, MATHESON, and PHILLIPS, Circuit Judges. 

 

 Jesus Antonio Mendez-Montoya pleaded guilty to one count of conspiracy to 

possess with intent to distribute marijuana, 21 U.S.C. § 841(b)(1)(D), and one count 

of reentry of a removed alien, 8 U.S.C. § 1326(a) and (b), and received concurrent 

sentences of 37 months’ imprisonment on each count. In his plea agreement, 

Mr. Mendez-Montoya acknowledged that he “knowingly waive[d] the right to appeal 

 

* 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is not binding precedent, except under the doctrines of law of the case, res judicata, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 4, 2014

Elisabeth A. Shumaker 

Clerk of Court
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this conviction and any sentence, including any fine, at or under the maximum 

statutory penalty authorized by law.” Dist. Court Doc. 19, at 8. He nevertheless took 

an appeal following the entry of judgment. The government has moved to enforce 

the appeal waiver in the plea agreement. We grant the motion. 

The government’s motion explains that the waiver in the plea agreement 

applies to this appeal, that the waiver was knowing and voluntary, and that there are 

no circumstances on the existing record to suggest a miscarriage of justice. 

See generally United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) 

(per curiam) (summarizing three components of court’s inquiry when enforcing 

appeal waiver). Upon receipt of the motion, we ordered Mr. Mendez-Montoya to file 

a response. He has done so through counsel, admitting he cannot assert “any legal or 

factual reasons to deny the motion.” Resp. to Mot. to Enforce Appellate Waiver in 

Plea Agreement (Resp.), at 1. 

The response does suggest there may be a potential claim for ineffective 

assistance of counsel in negotiating and entering the guilty plea, but concedes that 

there is not an “adequate basis in the [existing] record to raise this issue.” Id. at 2. 

Given that concession, the suggested claim is not available on this appeal. 

See United States v. Flood, 635 F.3d 1255, 1260 (10th Cir. 2011) (noting ineffective 

assistance claims may be heard on direct appeal “only where the issue was raised 

before and ruled upon by the district court and a sufficient factual record exists”). 

This rule of unavailability applies even where the ineffective assistance claim might 
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otherwise have been invoked in an effort to invalidate an appeal waiver under the 

miscarriage-of-justice exception. See United States v. Porter, 405 F.3d 1136, 

1143-44 (10th Cir. 2005). Under such circumstances, the appeal waiver remains in 

force on direct appeal, see id., but the defendant’s right to pursue the ineffective 

assistance claim on collateral review should be preserved, see, e.g., United States v. 

Polly, 630 F.3d 991, 1003 (10th Cir. 2011). 

The government’s motion to enforce the appeal waiver is granted and the 

appeal is dismissed. This disposition is without prejudice to any motion brought by 

Mr. Mendez-Montoya under 28 U.S.C. § 2255 asserting ineffective assistance of 

counsel. 

 Entered for the Court 

 Per Curiam