UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MARCELINO ALMARAZ, Defendant - Appellant. No. 18-3116 (D.C. No. 2:16-CR-20092-JAR-1) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , PHILLIPS , and EID , Circuit Judges.

________________ _________________ Marcelino Almaraz pleaded guilty to one count of aiding and abe tting in the preparation of false and fraudulen t income tax returns and one count of filing a false or fraudulent tax return. He was sentenced to serve 21 months in prison and ordered to pay $397,552 in restitution . Although his plea agreement co ntained a waiver of his appellate rights, he filed a notice of appeal. The governm ent has moved to enforce the appeal waiver in Mr. Almaraz’s plea agreement pursu ant to United States
v. Hahn , 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam).

* This panel has determined unani mously that oral argument would not materially assist in the det ermination 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 b inding 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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 25, 2018
Elisabeth A. Shumaker Clerk of Court2 Under Hahn , we consider “(1) whether the disputed appeal falls within the scope of the waiver of appellate r ights; (2) whether the defend ant knowingly and voluntarily waived his appellat e rights; and (3) whether enforc ing the waiver would result in a miscarriage of justice.” Id . at 1325. Mr. Almaraz indicated in his docketing statement th at he wants to challenge the restitution portion of his sentence on appeal. We first note that Mr. Almaraz wa s represented by attorney Carl Cornwell in the proceedings in district cour t and Mr. Cornwell entered an a ppearance on Mr. Almaraz’s behalf on appeal. B ut Mr. Almaraz filed a motion to represent himself pro se on appeal because he wanted to argue that Mr. Co rnwell provided ineffective assistance of counsel in his case before the distri ct court. We subsequently: (1) granted Mr. C ornwell’s motion to withdraw as counsel for Mr. Almaraz; (2) denied Mr. Almar az’s motion to represent himse lf pro se; and (3) appointed the Federal Public D efender for the District of K ansas to represent Mr. Almaraz on appeal. In his response to the motion to enforce, Mr. Almaraz disputes that his appellate waiver was knowing and voluntary . He wants to challe nge the waiver (and his guilty plea) based on Mr. Cor nwell’s alleged ineffective as sistance of counsel. But “he understands after consu ltation with current counsel tha t ‘a defendant must generally raise claims of ineff ective assistance of counsel in a collateral proceeding, not on direct review’—‘even whe re a defendant seeks to invalida te an appellate3 waiver based on ineffective assi stance of counsel.’” Resp. at 1-2 (quoting United
States v. Porter , 405 F.3d 1136, 1144 ( 10th Cir. 2005)). In his plea agreement, Mr. Almaraz reserved the right to raise a claim in a collateral proceeding for ineff ective assistance of counsel in the negotiation of his appeal waiver. He also reserve d the right—notwithstanding the other waivers in his plea agreement—to raise “any subs equent claims with regards to ineffective assistance of counsel or prosecuto rial misconduct.” Mot. to En f., Attach. C at 11. Given these circumstances, Mr. Almaraz “does not object to a fi nding that he cannot show on the present record that his plea or his wai ver was not knowing or voluntary, and he does not objec t to a dismissal of his direct appeal on the government’s motion without pre judice to him filing a 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel.” Resp. at 2. Cons idering the Hahn factors, Mr. Almaraz does not c ontest that his appeal falls wit hin the scope of his appeal waiver so we need not address that issue. See Porter , 405 F.3d at 1143. On the present record, we find that his waiver was knowing and vol untary. Although ineffective assistance of couns el in the negotiation of the ple a agreement is one of the four circumstances that could es tablish that enf orcing the appe al waiver would result in a miscarriage of justice, see Hahn , 359 F.3d at 1327, Mr . Almaraz has agreed to raise any such claim in a colla teral proceeding, consistent wit h this court’s decision
in Porter

.4 Accordingly, we grant the govern ment’s motion to enforce the ap peal waiver and dismiss the appeal. This di smissal is without prejudice to Mr. Almaraz filing a § 2255 motion that raises claims of ineffective assistance of c ounsel in connection with his guilty plea or appeal waiver.

Entered for the Court Per Curiam