UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ELMER DON WHITTAKER, a/k/a E.D., Defendant - Appellant. No. 15-7040 (D.C. No. 6:12-CR-00065-RAW-6) (E.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , BACHARACH , and MORITZ , Circuit Judges.
Following his acceptance of a plea agreement that included a waiver of his right to appeal, Elmer Don Whittaker plea ded guilty to maintaining drug-involved premises, in violation of 21 U.S.C. § 856. He was sentenced to 108 months’ imprisonment. Whittaker file d an appeal, and the govern ment has moved to enforce Whittaker’s appeal waiver. See United States v. Hahn , 359 F.3d 1315, 1328

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### September 25, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - (10th Cir. 2004) (en banc) (per curiam). We grant the government’s motion and dismiss the appeal.
I. In evaluating a motion to enforce an app eal waiver, we consider: “(1) whether the disputed appeal falls within the scope of the wa iver of appellate rights; (2) whether the defendant knowingly and vol untarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarri age of justice.” Id. at 1325. In his plea agreement, Wh ittaker waived his right to appeal his conviction and sentence, while reserving the right to app eal a sentence that exceeded the statutory maximum. Whittaker separately signed the waiver section of the plea agreement, affirming that his counsel ha d explained his appe llate rights, that he understood those rights, and that he was kno wingly and voluntarily waivi ng and relinquishing them. According to his Docketing Statement, Whittaker intends to argue on appeal that “[t]he Court incorrectly included drug quan tities for which this Defendant had not jointly undertaken the criminal activity of the distribution of the same.” Dock. Stmt.
at 3.
II. Shortly after his appeal was docketed, Whittaker’s counsel filed a motion to withdraw as counsel. The court denied that motion without prejudice because it failed to satisfy this court’s rules. Afte r the government filed its motion to enforce- 3 - Whittaker’s appeal waiver and ordered Whittake r to file a response, he filed a pro se Motion for Appointment of Co unsel, which the court denied because he was already represented by counsel. Whittaker then f iled two more pro se motions, which the court construed as seeki ng reconsideration of its denial of his Motion for Appointment of Counsel. In these filings, Whittaker as ked the court to appoint replacement counsel, indicati ng that he and his current counsel were in conflict regarding his appeal. Whittaker’s pro se motions seeking re placement counsel remain pending. Whittaker’s counsel filed a response to the government’s motion to enforce the appeal waiver. In that response, counsel st ated that he “cannot contest” the motion. Resp. at 1. He further a dvised that “[c]ounsel has not identified an arguable appeal ground outside the scope of the waiver,” id. at 2; that it is “indisputable” that Whittaker’s appeal waiver wa s knowing and voluntary, id. ; and that counsel cannot dispute that the record fails to show that enforcement of th e appeal waiver will result in a miscarriag e of justice, id. at 2-3. Whittaker’s counsel concluded by stating that “irreconcilable differences of opinion ex ist between Whittaker and counsel regarding his ultimate change of plea and sentence and therefore counsel does not object to other counsel being appointed to represen t Whittaker on the merits of any additional argument he wishes to submit.” Id. at 3. Whittaker’s counsel has not, however, renewed his motion to withdraw as counsel.- 4 - We gave Whittaker an opportunity to file a pro se response to the government’s motion to enforce his appeal waiver. Regarding his plea agreement, Whittaker asserts that [i]t was affirmatively represente d to Elmer Don Whittaker, by [his counsel], [that] his Guideline se ntence would not exceed thirty-six months. [Whittaker’s counsel] then proceeded to encourage Elmer Don Whittaker to enter a guilty plea unde r the government’s plea offer. This appellant had no familiarit y or knowledge of the federal sentencing procedures, including the Sentencing Guidelines. Thus, the appellant was forced to rely, exclusively, on the advice and recommendation of [his counsel]. That advice was fraudulent, and made for the sole purpose of avoidi ng preparations for a jury trial. Pro Se Resp. at 1-2.
III. Whittaker does not argue that his appeal issue falls outside the scope of the appeal waiver. Rather, we construe his pr o se response as conte nding (1) that he did not knowingly and voluntarily enter into his plea agreement, including the appeal waiver, and (2) that enforcement of his app eal waiver will result in a miscarriage of justice. A. Whittaker asserts that he entered into the plea agreement in reliance on his counsel’s false representation that hi s Guidelines sentence would not exceed 36 months. Whittaker was ulti mately sentenced to 108 m onths’ imprisonment. We construe this contention as a claim that Whittaker’s plea agreement was not knowing and voluntary, and therefore his a ppeal waiver is also invalid. See United States v.- 5 - Rollings , 751 F.3d 1183, 1189 (10th Cir. 201 4) (“[I]f the defendant did not voluntarily enter into the ag reement, the appellate waiver subsumed in the agreement also cannot stand.”), cert. denied , 135 S. Ct. 494 (2014). The record does not support Whittaker’s assertion that, in entering into the plea agreement, he relied on a false repres entation regarding the sentence he would receive. When determining whether a waiver of appellate right s is knowing and voluntary, we especially look to two f actors. First, we examine whether the language of the plea agreement stat es that the defendant entered the agreement knowingly and voluntarily. Second, we look for an adequate Federal Rule of Criminal Procedure 11 colloquy. Hahn , 359 F.3d at 1325 (citation omitted). Whittaker affirmed in the plea agreement that his guilty plea and his appeal waiver were knowing and voluntary. Additionally, at the change of plea hearing the district court confirmed Whittaker’s understanding of his appeal waiver and found, based on Whittaker’s testimony, that his plea was knowing and voluntary. More specifically, th e plea agreement addressed th e applicable maximum term of imprisonment, but it made no representa tion regarding the sentence the district court would impose. The agreement also explicitly st ated that it set forth the complete and only terms of the pl ea agreement between Whittaker and the government, and that the written agreemen t superseded all pr ior written or oral understandings. The agreement twice stat ed that no other promises, inducements,- 6 - understandings, agreements, or predictions had been or w ould be made regarding his case or in connection with hi s plea, except as provided in the written plea agreement. During the change of plea hearing, Whittaker indicated his understanding of the maximum imprisonment sentence. Th e court then asked the government and Whittaker’s counsel for their positions on the range of punishment under the Guidelines. The parties agr eed that the estimated Guid elines range was 168 to 210 months’ imprisonment, assu ming Whittaker was found to be a career offender, and before any adjustment for s ubstantial assistance. Whittaker respon ded that this was consistent with his understandi ng of the Guidelines range. At the change of plea hearing, Whittake r did not testify th at his counsel had represented that his Guidelin es sentence would not exceed 36 months’ imprisonment. Rather, he affirmatively stated that no one had promised him a nything to persuade him to plead guilty and that no government ag ent had predicted that he would receive a lighter sentence if he pled guilty. He stated further that he understood that his sentence was a matter solely within the c ontrol of the sentenci ng judge and that he was prepared to accept any punishment perm itted by law that the court saw fit to impose. Thus, the record reflects Whittaker’s agreement that no promise was made to induce him to plead guilty, other than the te rms of the written plea agreement, which did not include any representa tion regarding a 36-month sent ence. We conclude that- 7 - Whittaker has not demonstrated any basis for this court to hold that his guilty plea was not knowing and voluntary.
B. Whittaker may also be arguing that enfo rcement of his appeal waiver will result in a miscarri age of justice. We will find a miscarriage of justice only “[1] where the district court relied on an im permissible factor such as race, [2] where ineffective assistance of counsel in conn ection with the negotiation of the waiver renders the waiver invalid, [3 ] where the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise unlawful.” Hahn , 359 F.3d at 1327 (brackets in original). “This list is excl usive: enforcement of an a ppellate waiver does not result in a miscarriage of justi ce unless enforcement would re sult in one of the four situations enumerated above.” United States v. Polly , 630 F.3d 991, 1001 (10th Cir. 2011) (internal quotation marks omitted). Moreover, the defendant has the burden to demonstrate that enforcement of his appeal waiver would result in a miscarriage of justice. United States v. Anderson , 374 F.3d 955, 959 (10th Cir. 2004). Whittaker does not argue that the distri ct court relied on an impermissible factor in sentencing him, or that his sentence exceeds th e statutory maximum. Nor does he set forth any basis to conclude that his appeal waiv er is otherwise unlawful. See United States v. Sandoval , 477 F.3d 1204, 1208 (10th Cir. 2007) (stating that inquiry is “whether the waiver itself is unlawful because of some procedural error or because no waiver is possible”).- 8 - Whittaker does assert that he was forc ed to rely on his counsel’s advice regarding the sentence the district cour t would impose and that counsel made the false representation about a 36-month sentence to avoid having to prepare for a jury trial. But to the exte nt Whittaker is asserting that his counsel provided constitutionally ineffective as sistance in connection with the negotiation of his plea agreement and the appeal waiver, he canno t raise that claim on direct appeal. See United States v. Edgar , 348 F.3d 867, 869 (10th Cir. 200 3) (stating rule, with “rare exception,” that ineffective- assistance claims must be brought in a collateral proceeding). “This rule a pplies even where a defendant seeks to invalidate an appellate waiver based on ineffec tive assistance of counsel.” United States v. Porter , 405 F.3d 1136, 1144 (10th Cir. 2005). This court consid ers such claims on direct appeal “only where the issue was raised be fore and ruled upon by the district court and a sufficient factual record exists.” United States v. Flood , 635 F.3d 1255, 1260 (10th Cir. 2011). Whittaker doe s not claim that he raised this issue in the district

court. 1
We conclude that Whittaker has not de monstrated that enforcement of his appeal waiver will result in a miscarriage of justice. Ou r independent review of the record also confirms that Whittake r’s appeal waiver is enforceable.

1 In his plea agreement, Whittaker preserved his right to bring a claim in a collateral proceeding challenging the validity of his guilty plea or his waiver of appellate and post-conviction rights base d on ineffective assistance of counsel.- 9 - IV. Accordingly, we grant the government’s motion to enforce Whittaker’s appeal waiver and dismiss the appeal. We deny Whittaker’s pending pro se motions seeking replacement counsel.

Entered for the Court Per Curiam