UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. RAMON CHAVEZ, SR., Defendant - Appellant. No. 14-3173 (D.C. No. 2:12-CR-20039-KHV-1) (D. Kan.)

ORDER AND JUDGMENT *

Before MATHESON , O’BRIEN , and PHILLIPS , Circuit Judges.
After entering into a plea agreement th at included an appeal waiver, Ramon Chavez, Sr. pleaded guilty to one count of se lling firearms without a license. He was sentenced to 60 months’ imprisonment. De spite the appeal wa iver, Mr. Chavez has filed a notice of appeal in which he identif ies a single issue: “M r. Chavez wishes to challenge his conviction and se ntence in this case, based on the ineffectiv e assistance of his counsel.” Dktg. Stmt. at 4. The government has moved to enforce the 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### December 19, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - waiver. See United States v. Hahn , 359 F.3d 1315, 1328 ( 10th Cir. 2004) (en banc) (per curiam). We grant the motion and dismiss the appeal. In evaluating a motion to enforce a waiver under Hahn , we consider: “(1) whether the disputed a ppeal falls within the scope of the waiver of appellate rights; (2) whether the defe ndant knowingly and voluntar ily waived his appellate rights; and (3) whether enforcing the waiver would result in a misca rriage of justice.” Id . at 1325. In his counseled response opposing the motion to enforce, Mr. Chavez asserts several arguments, all of which lack merit. First, he argues that the government’s “motion is not ripe for hearing.” Resp. at 1. Setting aside the lack of any legal authority to support this argument, we r outinely resolve motions to enforce on the basis of the issues identifie d in the Docketing Statement. Otherwise, the government would be put to the task of briefing and thus denied the benefits of the plea agreement. Mr. Chavez’s second argument concerns the scope of the waiver, in which he maintains that the plea agreement is not as well dr afted as it could be and cautions that “[t]he Government would be well advised to adopt a drafting method that is used commonly among the most expe rienced transactiona l drafters; numbered sub-paragraphs and true pref atory statements of law.” Id . at 6. Mr. Chavez then lays out his proposed version of a better-drafted agreement. Without deciding whose draft is clearer, the relevant point is that the plea agr eement is not ambiguous.- 3 - Next, there is no factual basis to s upport Mr. Chavez’s statement that the waiver was not knowing and voluntary because he does not understand English. Setting aside the fact that an interpreter was available at all times during the plea hearing and Mr. Chavez declined the court’ s offer to use thos e services, his own lawyer stated that Mr. Ch avez “speaks and understands [English].” Plea Hr’g Tr. at 15. Nonetheless, Mr. Chavez presses th e issue by interpreting the facts to mean that his “comprehension of even ‘common’ English was in doubt,” and the court was therefore required to “order that the translator be used in order to fully ensure that the defendant understood the pro ceedings against him and the s ubstance of his waiver in the plea agreement.” Resp. at 9-10. This argument also lacks any legal support. In its motion to enforce the appeal waiver, the government argues that Mr. Chavez cannot circumvent the waiver by raising an ineffective assistance of counsel claim that is properl y raised on collateral revi ew. As we explained in United States v. Galloway , 56 F.3d 1239, 1249 (10th Cir. 1995) (en banc), “[i]neffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on dir ect appeal are presum ptively dismissible, and virtually all with be di smissed.” As such, we a ddress ineffec tive assistance claims on direct appeal only under a narrow set of circumstances, such as when the ineffective assistance claim is “f ully developed on the record.” United States v. Hamilton , 510 F.3d 1209, 1213 (10th Cir. 2007) (quotations omitted). Although the- 4 - waiver excludes claims of ineffective assistance of counsel, Mr. Chavez did not reserve the right to raise such claims on direct appeal

. Nonetheless, and apropos to what we in terpret as the misc arriage of justice factor, Mr. Chavez cites a line of cas es that acknowledge the existence of extraordinary circumstances th at may allow a direct appeal of ineffective assistance of counsel claims. The irrelevance of the exception, however, is obvious in light of Mr. Chavez’s failure to cite any extraordinary circumstance s. Instead, he circles back to his “ripeness” argum ent and states that “[u]nle ss the Government can read [his] mind, it has abso lutely no idea what the basis— factual or legal—may be for appealing on the grounds of ineffective assistance and so the Government has absolutely no factual basi s in which to root an argument that there are no ‘extraordinary circumstances’ lending themselves to a direct appeal.” Resp. at 12. But it is Mr. Chavez’s burden, not the gove rnment’s, to demonstrate extraordinary circumstances to justify a dire ct appeal of ineffective as sistance of counsel claims. See United States v. Porter , 405 F.3d 1136, 1144 (10th Cir. 2005) (recognizing that it is the defendant’s burden to demonstrate a reason to depart from the general practice that a defendant must generally raise cl aims of ineffective assistance counsel on collateral review). Last, Mr. Chavez main tains that enforcement of the plea agreem ent will result in a miscarriage of justi ce because he has no remedy to pursue his ineffective assistance of counsel claims. As e xplained above, this is incorrect.- 5 - The motion to enforce is granted, and this appeal is dismissed.

Entered for the Court Per Curiam