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 possession of ammunition 

by a prohibited person, in violation of 18 U.S.C. § 922(g)(1). Mr. Smith’s plea 

agreement contained a broad waiver 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 enforce 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 * This order and judgment is not binding precedent, except under the doctrines 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 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 

April 17, 2020

Christopher M. Wolpert 

Clerk of Court
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I. Background 

The district court sentenced Mr. Smith to 30 months in prison. This sentence 

was at the low end of the advisory sentencing guidelines range of 30 to 37 months. 

The district court also directed that Mr. Smith’s sentence “be served consecutively to 

any sentence imposed previously or prospectively 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 17CR8933.” 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) was the waiver knowing and voluntary; and 

(3) would enforcing the waiver result in a miscarriage 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 determining 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 that the defendant entered the agreement 

knowingly and voluntarily. Second, we look for an adequate Federal Rule of 
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Criminal Procedure 11 colloquy.” Id. (citation omitted). “The defendant has the 

burden to prove that he did not knowingly and voluntarily 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 “knowingly and voluntarily 

waive[d] the right to appeal any matter in connection with this prosecution, 

conviction, or sentence . . . .” Mot. to Enf., 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 waiving 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 explained “[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 Transcript) at 21. Mr. Smith 

was asked if he understood, and he said yes. 

Mr. Smith now argues that his waiver was not knowing and voluntary because 

“[n]either the plea agreement nor the court colloquy informed him of a possibility of 

consecutive sentences. And, quite the contrary, his counsel advised him that his 

sentences would be concurrent.” Resp. at 3. But a defendant does not need to “know 

with specificity the result he forfeits before his waiver is valid.” Hahn, 359 F.3d at 

1327. “The law ordinarily considers a waiver knowing, intelligent, and sufficiently 
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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 hearing that he understood 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 for counsel advising him 

that his sentences would be concurrent, his counsel admitted at sentencing that no 

such language appears in the plea agreement. Moreover, Mr. Smith acknowledged at 

his change of plea hearing that the district court would not be bound at sentencing by 

what anyone may have told him, promised him, or predicted for him about his 

sentence. Mr. Smith’s general waiver of his right to appeal his sentence was 

knowing and voluntary even if he did not know the specific 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 state 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 unless enforcement would result in one of four 

enumerated situations, including “where ineffective assistance 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 present 
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here “because in signing the appeal waiver [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 expressly stated that our holding in 

Hahn “does not disturb this longstanding rule.” Id. We later reiterated that “[t]his 

rule applies even where a defendant seeks to invalidate an appellate waiver based on 

ineffective assistance of counsel.” Porter, 405 F.3d at 1144. 

Although Mr. Smith suggests that his claim for ineffective assistance of 

counsel should be considered on direct appeal instead of in a collateral proceeding, 

we disagree. We have “considered ineffective assistance of counsel claims on direct 

appeal in limited circumstances, 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 Cir. 2011). But the circumstances here do not fall 

within the narrow exception to our general rule because the district court did not rule 

on the issue. 
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III. Conclusion 

For the foregoing reasons, we grant the 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 assistance of counsel. 

Entered for the Court 

Per Curiam