UNITED STATES CO URT 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 gu ilty to one count of conspiracy to possess with intent to dist ribute marijuana, 21 U.S.C. § 841(b)(1)(D), and one count of reentry of a removed alie n, 8 U.S.C. § 1326(a) and (b ), and received concurrent sentences of 37 months’ im prisonment 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 ar gument 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It ma y 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- 2 - this conviction and any sentence, incl uding 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 agr eement. We grant the motion. The government’s motion e xplains that the waiver in the plea agreement applies to this appeal, that the waiver was knowing and vo luntary, and that there are no circumstances on the existing record to suggest a miscarri age of justice.
See generally United States v. Hahn , 359 F.3d 1315, 1325 (10t h Cir. 2004) (en banc) (per curiam) (summarizing th ree components of court’ s inquiry when enforcing appeal waiver). Upon receipt of the motio n, 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 clai m for ineffective assistance of counsel in negotiating and en tering the guilty plea, but concedes that there is not an “adequate ba sis in the [existing] record to raise this issue.” Id. at 2. Given that concession, the suggested claim is not av ailable on this appeal.
See United States v. Flood , 635 F.3d 1255, 1260 (10th Cir. 2011) (noting ineffective assistance claims may be h eard 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 a pplies even where th e ineffective assist ance claim might- 3 - 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 circum stances, the appeal waiver remains in force on direct appeal, see id. , but the defendant’s right to pursue the ineffective assistance claim on collateral re view should be preserved, see, e.g. , United States v. Polly , 630 F.3d 991, 1003 ( 10th Cir. 2011). The government’s motion to enforce th e appeal waiver is granted and the appeal is dismissed. This disposition is without prej udice to any motion brought by Mr. Mendez-Montoya under 28 U. S.C. § 2255 asserting in effective assistance of counsel.

Entered for the Court Per Curiam