UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. EVELYNE JAMES, Defendant - Appellant. No. 17-2048 (D.C. No. 1:07-CR-02251-MV-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , HOLMES , and MORITZ , Circuit Judges.

________________ _________________ Evelyne James, a federal prisoner senten ced to 25 years’ imprisonment after pleading guilty to voluntary manslaughter of a child, appeals from th e district court’s denial of her request to withdraw her pl ea. The government has filed a motion to enforce the appeal waiver included in her plea agreement. We grant the motion and dismiss this appeal.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 28, 2017
Elisabeth A. Shumaker Clerk of Court2 Some procedural history will put the motio n in context. Ms. James entered her plea, pursuant to the agreement now invoke d by the government, in May 2012. In exchange for her plea, the government dism issed a first-degree murder charge and stipulated to a sentence between 25 a nd 27 years for voluntar y manslaughter. The agreement states that Ms. Ja mes “knowingly waives the right to appeal her conviction and any sentence in this case, except to the extent, if any, that the Court may impose a sentence that differs from that agreed to by the parties under Federal Rule of Criminal Procedure 11(c)(1)(C).” Mot. to Enforce, Ex. 1 at 6. She also waived her “right to collaterally attack any sentence imposed in [the] case except on the grounds of ineffective assistance of counsel.” Id. at 7. Three weeks later, but before sentencing, Ms. James sent a letter to the district court seeking to withdraw her plea and to obt ain substitute counsel. The court denied the requests, sentenced her to a 25-year term, and ente red judgment. No appeal followed. Ms. James later filed a motion for re lief under 28 U.S.C. § 2255 arguing, among other things, that her c ounsel had rendered ineffective assistance by failing to take an appeal from the denial of her reque st to withdraw her plea. The government opposed this claim in part on the basis that her appeal waiver undercut any prejudice from this omission. It also eventually filed a motion to enforce the waiver. Acting on the magistrate judge’s r ecommendation, the district court granted relief on the ineffective-assistance claim. The court va cated and reinstated its prior judgment to give Ms. James the opportunity to perfect the appeal counsel had forgone, and also3 denied the government’s motion to enforce the appeal waiver as premature. When Ms. James did file the appeal , the government filed with th is court the instant motion to enforce the a ppeal waiver. The government’s motion argues that the waiver applies to this appeal, that it was knowing and voluntary, and that there ar e no circumstances ev ident on the record to suggest that enforcement of the waiver would give rise to a miscarriage of justice.
See generally United States v. Hahn , 359 F.3d 1315, 1325 (10t h Cir. 2004) (en banc) (per curiam) (summarizing th ree components of court’ s inquiry when enforcing appeal waiver). Ms. James disputes all three points and also contends that the government has forfeited the right to enfor ce the appeal waiver. We begin with the last point. I. GOVERNMENT FORFEITURE OF APPEAL WAIVER Ms. James argues that the government forfe ited its right to enforce the appeal waiver by failing to assert the waiver in timely fashi on in response to her § 2255 motion. But that motion and this appeal are two distinct proceedings implicating different waiver provisions in the plea agreement. And, as noted above, the waiver provision limiting the right to seek collatera l review specifically excepts claims of ineffective assistance of counsel. Thus, the appeal waiver now at issue was not previously available (as th e district court recognized in denying the government’s prior motion to enforce as premature), a nd the collateral-revie w waiver that was available below was not applicable to the ineffective-assi stance claim.4 Nor can the government be deemed to ha ve forfeited the app eal waiver through delay in invoking it in opposition to Ms. Jame s’ § 2255 motion, on the theory that the waiver would have conclusively undercut her claim seeking a delayed direct appeal based on counsel’s failure to perfect a timely one. Becau se appeal waivers are not always enforceable (and can be forfeited even when otherw ise applicable), we have held that such delayed-appeal claims are no t defeated by the existe nce of waivers that the government could seek to enfo rce once the appeal is brought. See United States
v. Garrett , 402 F.3d 1262, 1266-67 (10th Cir. 2005); see also United States v. Parker , 720 F.3d 781, 786 & n.6 (10th Cir. 2013). In sum, the a ppropriate time for the government to enforce Ms. James’ appeal waiver is now. II. ENFORCEABILITY OF APPEAL WAIVER A. Scope of the Waiver Ms. James argues that this appeal falls outside the wa iver because she “is not appealing her sentence, rather , she is appealing the denial of her motion to withdraw her plea.” Resp. to Mot. to Enforce (Resp.) at 6. But her waiver also covered the right to appeal her convicti on, and this court explained some time ago “‘that an appeal of a denial of a mo tion to withdraw a guilty plea is an attempt to contest a conviction on appeal and thus falls within the plain language of an appeal waiver provision.’” United States v. Leon , 476 F.3d 829, 832 (10th Cir. 2007) (per curiam) (brackets omitted) (quoting United States v. Elliott , 264 F.3d 1171, 1174 (10th Cir. 2001)). Ms. James contends th e appeal waiver at issue in Elliott (she does not mention Leon ) was broader in some respects than her waiver, but the material point is5 that she waived the right to appeal her conviction and, under our case law, that is precisely what she is attempting to do. B. Knowing and Voluntary Waiver Ms. James also argues that her plea, and by extensi on her appeal waiver, was not knowing and voluntary. See generally United States v. Rollings , 751 F.3d 1183, 1186 (10th Cir. 2014) (“[I]n determining whet her an appellate wa iver is knowing and voluntary [and thus enforceable] under Hahn , we may consider whether the entire plea agreement, including the plea, was en tered knowingly and vo luntarily.”). The defendant bears the burden of establishing that an app eal waiver was not knowing and voluntary. Id. at 1187. In resolving this i ssue, we consider “whether the language of the plea agreement states th at the defendant entered the agreement knowingly and voluntarily” and “whether th ere was an adequate Federal Rule of Criminal Procedure 11 colloquy.” Id. at 1188 (internal quotati on marks omitted). We have reviewed these sources and agre e with the government that they fully support the knowing and volunt ary nature of Ms. James’ plea and appeal waiver.
See United States v. Tanner , 721 F.3d 1231, 1234 (10t h Cir. 2013) (per curiam) (noting synergistic effect of re presentations in plea agreement and colloquy “will often be conclusive” in showing appeal waiver to be knowing a nd voluntary). Ms. James objects that her short, mostly yes-or-no type respons es during the colloquy did not reflect a “serious in teractive dialogue with the C ourt.” Resp. at 11. But “‘[t]here is no requirement that in orde r to rely on a defendant’s answer in a guilty-plea colloquy to conclude that th e defendant pleaded guilty knowingly and6 voluntarily, those answers mu st be lengthy and all-encomp assing; a straightforward and simple “Yes, your Honor” is sufficient.’” United States v. Torrellas , 455 F.3d 96, 103 (2d Cir. 2006) (quoting United States v. Gardner , 417 F.3d 541, 544 (6th Cir. 2005)). And the fact that th e magistrate judge at one point said to Ms. James “I want you to breathe for me because I don’t want to see you faint . . . and if you need to sit down, you let me know,” Resp . at 12 (brackets and intern al quotation marks omitted), does not, as Ms. James suggests, demonstr ate that her unders tanding of the colloquy was somehow suspect. Ms. James further argues that she acted quickly in seeking to withdraw her plea and that her alacrity s upports her allegation that, notwithstanding her contrary representations on the record, she had not u nderstood the proceedings or the terms of her agreement. In United States v. Vidakovich , 911 F.2d 435, 439 (10th Cir. 1990), this court stated that “a swif t change of heart,” such as one that takes place within “a day or so” of a plea, can lend support to a claim that the plea had not been knowing and voluntary. But Ms. James took over three weeks to act. And her testimony at the hearing on her motion to withdraw her plea indicates she acted out of second thoughts about the sentencing range specified in the agreement and on the prompting of a fellow inmate who told her she should have been offered more plea deals.
See Mot. to Enforce, Ex. 3 at 14-15. Such after-the-fact reasse ssments do not show that her plea was unknowing or i nvoluntary when it was made. Ms. James contends her le tter requesting to withdr aw her plea evidences her lack of understanding of th e plea and the pressure im posed by counsel and her own7 circumstances to agree to it . As for lack of understa nding, Ms. James points to a statement in the letter that counsel “conf used [her] by saying he changed [her] plea from involuntary manslaughter to voluntary manslaughter,” as the latter “carries a longer term of imprisonment. ” Resp., Ex. A at 1. Th e district court examined counsel on this point at th e hearing prompted by the lette r. Counsel explained that sentencing was of primary importance to both sides, with Ms. James intent on avoiding a life term. Plea ne gotiations initially involved offers and counter-offers regarding the appropriate term of impris onment. Upon striking the compromise noted above (between the 20- year offer counsel opened with and the government’s 30-year counter-offer)—which Ms. James specifically accepted—negotiations then proceeded to specification of an offense that could fit both the sentence and the facts of the case. When problems with using in voluntary manslaughter (initially proposed for this purpose) were fleshed out, the pa rties agreed to use voluntary manslaughter instead. After counsel recount ed this negotiation process at the hearing, Ms. James admitted his testimony did “ring a bell.” Mot. to Enforce, Ex. 3 at 13. These events may suggest that Ms. James ha d forgotten, or not fully a ppreciated, some of the legal nuances involved in the negotiation process leading to the plea offer she accepted, but they do not show she did not knowingly enter the pl ea for the straightforward sentencing benefit e xplained by counsel. 1

1 For the same reason, the fact that the court acknowledged at the hearing that confusion on Ms. James’ part with respect to the rationa le for selecting voluntary (continued)8 Ms. James’ letter also stated that couns el had told her “the re is and will be only one plea agreement offered so [she] must sign [what] ha s been offered.” Resp., Ex. A at 1. She cites no au thority for the tacit legal pr emise here that being told (correctly or not) that a pl ea offer is the only one forthcoming makes the defendant’s free acceptance of that offer—fo r the benefits it undeniably bestows in contrast to the uncertainties of trial on a far more serious charge—inv oluntary or unknowing. In any event, at the hearing counsel denied making such a stat ement, explaining it would have been plainly inconsistent wi th the parties’ open, back-and-forth plea negotiations that involved multiple offers from the government. When given the opportunity to respond to counsel’s statemen ts at the hearing, Ms. James declined, leaving them unchallenged. When opposing a motion to enforce an appeal waiver, “it is the defendant who bears the burden of demonstrating [her] waiver was not knowing and voluntary.” United States v. White , 584 F.3d 935, 948 (10th Cir. 2009) (internal quotation marks omitted). Under the circumstances, Ms. James has not carried that burden on the basis of he r allegation that sh e was told the plea agreement she accepted was the one and only offer that would be made. Her associated claim that her pl ea was involuntary because sh e felt rushed into it is inconsistent with her statem ents on the record at the pl ea hearing affirming that she

manslaughter would not be surprising, see Resp. at 12-13, does not imply that her acceptance of the plea was unknow ing or involuntary.9 had had sufficient time to consult with c ounsel and that no one was pressuring her to plead guilty. 2 Finally, Ms. James insists an allegation in her § 2255 motion (filed two years after her plea) further evid ences her overall lack of understanding. Specifically, where the motion form asks why a challenge to her sentence had not previously been raised on direct appeal, she st ated she “did not understand I could appeal.” Resp. at 13 (brackets and internal quotation marks om itted). Leaving aside the conclusory, collateral, and chronologically remote character of this st atement, it does not show she misunderstood her plea agreement—in pa rticular, the appeal waiver included therein. To the contrary, it demonstrates a continuing aw areness of that waiver. It would, rather, be of more concern if she indicated that the agreement had not constrained her right to appeal. C. Miscarriage of Justice Ms. James raises several arguments unde r the miscarriage-of-justice rubric. One of these is simply a re assertion of an objection we have already rejected, i.e., that it would be a miscarri age of justice to allow the government to enforce the appeal waiver in the plea ag reement, because it has waiv ed its right to do so. The rest of her arguments are meritless.

2 In addition, her suggestion that “mem ory issues” could have “contributed to her confusion” in some unspecified way, Re sp. at 13, is far too vague and conclusory to undermine the valid ity of her plea.10 Ms. James contends that “enforcing the wa iver with respect to [her] motion to withdraw [her] plea would amount to forc ing upon her a waiver of her right to a critical part of her sent encing without the requisite explicit knowing and voluntary relinquishment of that right.” Resp. at 15. If she means, literally, that the waiver was improperly applied by the district court to the motion to wit hdraw itself, she is incorrect. The district court did not refuse to consider the motion on the basis that such relief had been waived but, rather, denied it on th e merits because Ms. James had failed to demonstrate “ any basis for withdrawal of [her] plea agreement.” Mot. to Enforce, Ex. 3 at 27 (emphasis added). A nd to the extent she is simply reasserting her argument that her plea wa s not knowing and voluntary, we have already held her showing in that regard is inadequate. 3 Similarly unclear and unsubstantiate d is Ms. James’ objection that “[p]recluding [her] challenge to the district court’s misund erstanding of its discretion to allow for the plea to be withdrawn is likewise unlawful because it would uphold a waiver contained in an agreement the dist rict court unlawfully accepted. . . . The

3 Her associated statement that “to determine if a wa iver is otherwise unlawful the focus must be on the ri ghts the waiver purportedly relinquishes,” Resp. at 15 (citing United States v. Smith , 500 F.3d 1206, 1212-13 ( 10th Cir. 2007)), suggests she may intend to bolster her objection to th e appeal waiver by pointing to the fact that it will result in her losing appellate review of the denial of her motion to withdraw her plea. If so, her argument stands Smith on its head. In that case we clarified that the inquiry into the lawfulne ss of a waiver must focus “on the right relinquished,” i.e., the right to appeal , and not “the result of the proceeding,” i.e., the alleged error for which appe llate review is sought. Smith , 500 F.3d at 1213. In any event, Ms. James has not shown that the discretionary denial of her motion to withdraw her plea remotely approach ed a miscarriage of justice.11 error goes to the validity of the waiver.” Resp. at 15. She points to nothing in the record for her oblique clai m that the district court somehow misunderstood its discretion to allow the withdrawal of her plea . As for her concluso ry reference to the court’s unlawful acceptance of the plea agreem ent, we have, again, already held that Ms. James has failed to show that her plea was not knowin g and voluntary. III. CONCLUSION Ms. James has failed to sa tisfy her burden of demons trating that the appeal waiver in her plea agreement should not be enforced. Accordingly, the government’s motion is granted and this appeal is dismissed.

Entered for the Court Per Curiam