UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ALEXANDER REOSLE SMITH, Defendant - Appellant. No. 19-1483 (D.C. No. 1:19-CR -00094-REB-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before EID , KELLY , and CARSON , Circuit Judges.

________________ _________________ Alexander Reosle Smith pled guilty to one count of possess ion of ammunition by a prohibited person, in violation of 18 U.S.C. § 922(g)(1). Mr. Smith’s plea agreement contained a broad waiv er of his right to appeal his sentence. Despite this waiver, Mr. Smith seeks to appeal his sentence and the manner in which it was imposed. The government has filed a motion seeking to enfo rce the appeal waiver in Mr. Smith’s plea agreement under United States v. Hahn , 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). We grant the government’s motion and dismiss the appeal.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel.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 

### April 17, 2020 Christopher M. Wolpert Clerk of Court2 I. Background The district court sentenced Mr. Smith to 30 months in prison. This sentence was at the low end of the a dvisory sentencing guidelines range of 30 to 37 months. The district court also directed that Mr. Smith’s sentence “be se rved consecutively to any sentence imposed previously or prosp ectively in any state or federal case, including any sentence imposed by the District Court in and for the City and County of Denver, Colorado, in Case Number 17CR8 933.” Mot. to Enf ., Attach. (Sentencing Transcript) at 10. II. Discussion Under Hahn , we consider the following three factors in determining whether to enforce an appeal waiver in a plea agreement: (1) does the disputed appeal fall within the scope of the waiver; (2) wa s the waiver knowing and voluntary; and (3) would enforcing the waiver result in a misca rriage of justice. 359 F.3d at 1325. Mr. Smith does not assert that his appeal is outside the scope of his appeal waiver, so we need not address that factor, see United States v. Porter , 405 F.3d 1136, 1143 (10th Cir. 2005). He argues that his waiver was not knowing and voluntary and that enforcing the waiver would result in a miscarriage of justice. A. Knowing and Voluntary We look to two factors when determini ng whether a waiver of appellate rights is knowing and voluntary. Hahn , 359 F.3d at 1325. “First, we examine whether the language of the plea agreement states th at the defendant entered the agreement knowingly and voluntarily. Second, we l ook for an adequate Federal Rule of3 Criminal Procedure 11 colloquy.” Id . (citation omitted). “T he defendant has the burden to prove that he di d not knowingly and voluntar ily enter into his plea agreement.” United States v. Salas-Garcia , 698 F.3d 1242, 1254 (10th Cir. 2012). Mr. Smith’s signed plea agreement states that he “knowi ngly and voluntarily waive[d] the right to appeal any matte r in connection with this prosecution, conviction, or sentence . . . .” Mot. to En f., Attach. (Plea Agreement) at 2-3. During its Rule 11 plea colloquy, the district court reviewed the terms of the plea agreement with Mr. Smith, including the waiver of his appellate rights. Mr. Smith acknowledged to the court that he understood his appeal rights and that he understood and accepted that he was waivi ng those rights in his plea agreement. The court also explained that under the terms of the plea agreement, it had the discretion to determine the sentence in his case. The court further e xplained “[t]hat means, among other things, that [the court] will not be bound . . . at your sentencing hearing by what anyone may have told you, promised you, or predicted for you about the sentence that [the court] will impose.” Id ., Attach. (Change of Plea Tran script) at 21. Mr. Smith was asked if he underst ood, and he said yes. Mr. Smith now argues that his waiver was not knowing a nd voluntary because “[n]either the plea agreement nor the court colloquy informed him of a possibility of consecutive sentences. And, quite the contrary, his co unsel advised him that his sentences would be concurrent.” Resp. at 3. But a defendant does not need to “know with specificity the resu lt he forfeits before hi s waiver is valid.” Hahn , 359 F.3d at 1327. “The law ordinarily considers a waiver knowing, in telligent, and sufficiently4 aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances—even though the defendant may not know the specific detailed consequences of invoking it.” Id . (brackets and internal quotation marks omitted). Mr. Smith stated at the change of plea he aring that he unders tood the district court had the discretion to impose whatever sentence it considered appropriate and that he was giving up his right to appeal his sentence. As fo r counsel advising him that his sentences would be concurrent, hi s counsel admitted at sentencing that no such language appears in the plea agreemen t. Moreover, Mr. Sm ith acknowledged at his change of plea hearing that the district court would not be bound at sentencing by what anyone may have told him, promis ed him, or predicted for him about his sentence. Mr. Smith’s gene ral waiver of his right to appeal his sentence was knowing and voluntary even if he did not know the speci fic consequence of invoking it—i.e, that he was giving up a challenge to the district court’s decision to order his federal sentence to run consecutively to an anticipated st ate sentence. B. Miscarriage of Justice Mr. Smith next argues that enforcing his appeal waiver would result in a miscarriage of justice. In Hahn , we held that enforcement of an appeal waiver does not result in a miscarriage of justice unle ss enforcement would result in one of four enumerated situations, including “where ineffective assistan ce of counsel in connection with the negotiation of the waiver renders the waiver invalid.” 359 F.3d at 1327 (internal quotation marks omitted). Mr . Smith asserts this situation is present5 here “because in signing the appeal waiv er [he] relied on his counsel’s incorrect advice that his sentences would be concurrent.” Resp. at 4. We make no comment on the merits of Mr. Smith’s claim, but we conclude that it cannot be raised on direct appeal and therefore it will not prevent enforcement of the appeal waiver at this stage in the proceedings. In Hahn , we explained that “[g]enerally, we only consider ineffective assistance of counsel claims on collateral review.” Hahn , 359 F.3d at 1327 n.13. And we expr essly stated that our holding in Hahn “does not disturb this longstanding rule.” Id . We later reiter ated that “[t]his rule applies even where a de fendant seeks to invalidate an appellate waiver based on ineffective assistance of counsel.” Porter , 405 F.3d at 1144. Although Mr. Smith suggests that his cl aim for ineffectiv e assistance of counsel should be considered on direct appeal instead of in a collateral proceeding, we disagree. We have “considered ineffec tive assistance of counsel claims on direct appeal in limited circumstan ces, but only where the issue was raised before and ruled upon by the district court and a sufficient factual record exists.” United States v. Flood , 635 F.3d 1255, 1260 (10th Ci r. 2011). But the circum stances here do not fall within the narrow exception to our general rule because the district court did not rule on the issue.6 III. Conclusion For the foregoing reasons, we grant th e government’s motion to enforce and dismiss this appeal. This dismissal is without prejudice to Mr. Smith filing a collateral action to bring a claim for ineffective assistan ce of counsel.

Entered for the Court Per Curiam