UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

DAVID VILLAGRANA, 

 Defendant-Appellant. 

No. 12-2122 

(D.C. No. 1:11-CR-01877-MV-1) 

(D. N.M.)

 

ORDER AND JUDGMENT*

 

Before BRISCOE, Chief Judge, MURPHY and O’BRIEN, Circuit Judges. 

 

 This matter is before the court on the government’s motion to enforce the 

appeal waiver contained in defendant David Villagrana’s plea agreement. We grant 

the government’s motion and dismiss the appeal. 

 Mr. Villagrana pled guilty to possession with intent to distribute cocaine, in 

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). At his change-of-plea hearing, he 

 

* This panel has determined that oral argument 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is not binding precedent, except under the doctrines of law of the case, res judicata, 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 

December 11, 2012

Elisabeth A. Shumaker 

Clerk of Court
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confirmed to the district court that the plea agreement had been read to him in 

Spanish, he had discussed it with his attorney, his attorney had answered his 

questions about it, he had no more questions about it for the court or for his attorney, 

he was satisfied with his attorney’s advice and representation, he had no complaints 

about his attorney, he was not threatened or coerced into pleading guilty, and he 

signed the plea agreement freely and voluntarily. See Aplee. Mot. to Enforce 

Appellate Waiver in Plea Agreement, Att. 2, at 13, 26-27, 28-29. The court accepted 

his guilty plea and determined that his total offense level was 27, his criminal history 

category was I, and the applicable advisory guideline range was 70-87 months in 

prison. But Mr. Villagrana was also safety-valve eligible, see 18 U.S.C. § 3553(f); 

U.S.S.G. § 5C1.2, and the district court sentenced him to 60 months’ imprisonment, 

below the advisory guideline range. 

 In his plea agreement, Mr. Villagrana waived his right to appeal his conviction 

or his sentence if his sentence was within or below the applicable advisory 

sentencing guideline range, as determined by the district court. See Aplee. Mot. to 

Enforce Appellate Waiver in Plea Agreement, Att. 1, at 8-9. Nevertheless, he filed a 

pro se notice of appeal in the district court. The government filed a motion in this 

court to enforce the plea agreement pursuant to United States v. Hahn, 359 F.3d 1315 

(10th Cir. 2004) (en banc) (per curiam). Mr. Villagrana’s attorney stated that there 

are no non-frivolous arguments that can be presented in response to the motion to 
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enforce, citing Anders v. California, 386 U.S. 738, 744 (1967), and filed a motion to 

withdraw as counsel. 

 We will enforce an appeal waiver as long as three elements are met: (1) “the 

disputed appeal falls within the scope of the appellate waiver”; (2) “the defendant 

knowingly and voluntarily waived his appellate rights”; and (3) “enforcing the waiver 

will [not] result in a miscarriage of justice.” Hahn, 359 F.3d at 1325, 1327. 

Mr. Villagrana timely filed a pro se response to the government’s motion, raising two 

arguments. First, he makes a conclusory argument that his appeal does not fall 

within the appeal waiver because he was tricked into pleading guilty by his attorney 

and coached as to how to respond to the court during the change-of-plea hearing. He 

does not explain further, however, and we are not persuaded that his waiver of his 

appeal rights was not knowing and voluntary. His ineffective-assistance claims 

should be raised, if at all, in a collateral proceeding under 28 U.S.C. § 2255. 

See United States v. Novosel, 481 F.3d 1288, 1294-95 (10th Cir. 2007) (per curiam). 

His plea agreement preserves his right to bring a § 2255 motion asserting that his 

counsel was ineffective in negotiating or entering the plea agreement or appeal 

waiver. Aplee. Mot. to Enforce Appellate Waiver in Plea Agreement, Att. 1, at 9. 

 Second, Mr. Villagrana argues that the district court abused its discretion by 

not reducing his sentence further below the guideline range on account of his certain 

deportation on account of his conviction. But this argument is not only unsupported, 
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it also does not relate to the elements we must consider when determining whether to 

enforce the appeal waiver. 

 Under Anders, we have reviewed the motion and the record, and we conclude 

that Mr. Villagrana’s proposed appeal falls within the scope of the appeal waiver, 

that he knowingly and voluntarily waived his appellate rights, and that enforcing the 

waiver would not result in a miscarriage of justice. See Hahn, 359 F.3d at 1325-27. 

 Accordingly, we GRANT the government’s motion to enforce the appeal 

waiver, GRANT Mr. Villagrana’s attorney’s motion to withdraw, and DISMISS the 

appeal. 

 Entered for the Court 

 Per Curiam