UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GEORGE DANIEL NITCHMAN, Defendant - Appellant. No. 23-8047 (D.C. No. 1:22-CR -00080-SWS-1) (D. Wyo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , Chief Judge, PHILLIPS , and EID , Circuit Judges.

________________ _________________ George Daniel Nitchman pleaded guilty to possession of more than 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and received a 110-month prison se ntence. He has appealed fro m that sentence. His plea agreement contains an appeal waiver, wh ich the government now seeks to enforce under United States v. Hahn , 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). Mr. Nitchman’s counsel responds that he is not aware of any non-frivolous argument for overcoming the wa iver, and he has moved to withdraw. See Anders v. California , 386 U.S. 738, 744 (1967).

* This order and judgment is not bi nding 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 

### November 21, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 23-8047 Document: 010110956536 Date Filed: 11/21/2023 Page: 12 By letter dated September 27, 2023, this court gave Mr. Nitchman until October 18, 2023, to file a pro se response, if desired. See Anders , 386 U.S. at 744 (“A copy of counsel’s brief should be furnished the in digent and time allowed him to raise any points that he choos es . . . .”). He filed noth ing by that date, so the court issued a deficiency notice and directed Mr. Nitchman to file a response by November 2. His response was received on November 7. Despite its having been filed late, we will consider Mr. Nitchman’s response as we make “a full examination of all the proceedings[] to decide whether [opposition to the government’s motion] is wholly frivolous.” Id. In evaluating a motion to enforce an appellate waiver, we consider: “(1) whether the disputed a ppeal falls within the scope of the waiver of appellate rights; (2) whether the defe ndant knowingly and voluntar ily waived his appellate rights; and (3) whether enforcing the waiver would result in a misca rriage of justice.” Hahn , 359 F.3d at 1325. The record shows that each of these factors is satisfied. First, Mr. Nitchman’s appeal is within the scope of the waiver. On appeal, he seeks to challenge the base offense level the district court used to determine the applicable Sentencing Guidelines range. Pro Se Resp. at 1. But the plea agr eement stated that Mr. Nitchman waived his right to a ppeal, among other things, “any matter in connection with . . . the co mponents of his sentence,” unless his sentence exceeded Appellate Case: 23-8047 Document: 010110956536 Date Filed: 11/21/2023 Page: 23 the applicable advisory Sentencing Guidelines range. 1 Mot. to Enforce at 3. Because Mr. Nitchman’s sentence was well within the advisory Guidelines range, he has waived the right to challenge it. Second, the plea agreement clearly sets forth that the waiver was knowing and voluntary, and during the ch ange of plea hearing the district court confirmed Mr. Nitchman’s understanding that his gu ilty plea would result in his waiving his appellate rights. See Hahn , 359 F.3d at 1325 (on second factor, the court looks to whether the plea agreement states the waiv er was knowing and vo luntary and whether there was a sufficient Federal Rule of Crim inal Procedure 11 colloquy). Mr. Nitchman does not argue otherwise. See United States v. Porter , 405 F.3d 1136, 1143 (10th Cir. 2005) (where defe ndant does not contest the dist rict court’s determination that he knowingly and voluntarily waived hi s appellate rights, the court need not address the issue). Finally, we see no risk of a miscarriage of justice if the appellate waiver is enforced. A miscarriage of justice occurs only: [1] where the district court relied on an impermissible factor such as race, [2] where ineffectiv e assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid, [3] where the sentence exceeds the statutory maximu m, or [4] where the waiver is otherwise unlawful.

1 The waiver also contemplated that Mr. Nitchman could raise claims of ineffective assistance of counsel or pros ecutorial misconduct under 28 U.S.C. § 2255, or seek a sentence reduction under 18 U.S. C. § 3582(c). Thes e exceptions do not apply here. Mr. Nitchman’s response indicates that he be lieves his attorney provided ineffective assistance, but su ch “claims should be brought in collateral proceedings, not on direct appeal.” United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995). Appellate Case: 23-8047 Document: 010110956536 Date Filed: 11/21/2023 Page: 34 Hahn , 359 F.3d at 1327 (internal quota tion marks omitted). None of these situations is applicable. First, there is no evid ence that Mr. Nitchman’s race or another impermissible factor had anything to do with his sentence. Second, although Mr. Nitchman has complained about his couns el’s performance, not hing at this stage of the proceedings indicates he received in effective assistance in connection with the negotiation of the waiver. Indeed, under th e original charges Mr. Nitchman faced a possible sentence of up to 40 years, but his counsel negotiated a plea deal resulting in a much lower sentence (slightly over 9 year s) that was at the bottom of the range called for by the Sentencing Guidelines. Third, Mr. Nitchman’s sentence did not exceed the 40-year statutory maximum. See 21 U.S.C. § 841(b)(1)(B). Fourth, there is no indication that Mr. Nitchman’s waiver is “otherwise unlawful.” Hahn , 359 F.3d at 1327. In short, we find the enforcement of Mr. Nitchman’s appellate waiver would not result in a miscarriage of justice as defined by Hahn

. We therefore grant counsel’s motion to withdraw, grant the government’s motion to enforce the appeal waiv er, and dismiss this appeal.

Entered for the Court Per Curiam Appellate Case: 23-8047 Document: 010110956536 Date Filed: 11/21/2023 Page: 4