UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JENNIFER SANDERS, Defendant - Appellant. No. 17-2122 (D.C. Nos. 1:16-CV-00831-RB-LF and 2:13-CR-03696-RB-1) (D. N.M.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

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

________________ _________________ Jennifer Sanders, a federal prisoner proceeding pro se, 1 seeks a certificate of appealability (COA) to appeal the district court’s deni al of her 28 U.S.C. § 2255 motion. For the reasons discussed below, we deny her request for a COA and dismiss this matter. I Sanders pleaded guilty to one count of conspiracy to distribute methamphetamine and seven counts of distributing methamphetamine. Although she faced a maximum of life in prison, the di strict court imposed a 130-month sentence

* This order isn’t binding precedent, ex cept under the doctrines of law of the case, res judicata, and collatera l estoppel. But it may be cite d for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 1 Because Sanders appears pro se, we liberally construe her pleadings. Gallagher v. Shelton , 587 F.3d 1063, 1067 (10th Cir. 2009). FILED United States Court of Appeals Tenth Circuit 

### November 21, 2017 Elisabeth A. Shumaker Clerk of Court2 based on several downward de partures. Sanders didn’t appeal. In fact, Sanders waived her right to appeal as part of he r plea agreement. That agreement included a “waiver of appeal rights,” which stated that Sanders agreed to waive both her right to a direct appeal and her right to collaterally attack her sentence “except on the issue of [her] counsel’s ineffective as sistance in negotiating or en tering th[e] plea or th[e] waiver.” R. vol. 2, 22. Nonetheless, Sanders f iled a § 2255 motion challe nging her sentence. She contended that her plea was the “product of coercion” because her attorney failed to explain how the sentencing guidelines work and led her to believe that she would receive a sentence of only a few years. R. vol . 1, 21. She also argued that her attorney provided ineffective assistance of counsel (IAC) by failing to argue for a minor-role adjustment, failing to file a direct appeal, and failing to investigate whether some of her prior convictions actuall y qualified as controlled- substance violations for purposes of her career-offender enhancement. In response, the government argued that all of Sanders’ clai ms fell within the scope of her collateral-attack waiver. A magistrate judge made proposed factual findings and recommended de nying Sanders’ motion becau se she had waived her right to collaterally attack her sentence. Sanders objected to the magistrate judge’s findings and recommendation, but the distri ct court adopted them, denied Sanders’ motion, and declined to issue a COA. Sanders now seeks to appeal the district court’s denial of her petition, but she must firs t obtain a COA. 28 U.S.C. § 2253(c)(1)(B).3 II The district court denied Sanders’ mo tion on procedural grounds: it enforced her collateral-attack waiver and didn’t reach the merits of her § 2255 motion. When a district court denies a § 2255 motion on procedural gr ounds, “a COA should issue when the prisoner shows, at least, that jurists of r eason would find it debatable whether the petition states a va lid claim of the denial of a constitutional right and that jurists of reason would find it debatable whet her the district cour t was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). For the reasons discussed below, we conclude that reasonable jurists c ouldn’t debate the district court’s procedural ruling as to all but one of Sanders’ claims. And even assuming that reasonable jurists could debate whethe r the district court correctly dismissed Sanders’ remaining claim on procedural gr ounds, reasonable jurists couldn’t debate whether that claim adequately allege s the denial of a constitutional right. Accordingly, we deny her request for a COA. A We first consider whether reasonable juri sts could debate th e district court’s conclusion that the collate ral-attack waiver bars th e claims in Sanders’ § 2255 motion. Collateral-attack waiv ers are enforceable if: (1) the defendant’s claims fall within the scope of the wa iver, (2) the defendant knowingly and voluntarily waived her rights, and (3) enforcing the waiver w on’t result in a miscar riage of justice. United States v. Hahn , 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam); see also United States v. Pinson , 584 F.3d 972, 975 (10t h Cir. 2009) (applying4 appeal-waiver standard from Hahn to collateral-attack waiv ers). The district court considered each of these elements in turn. First, the district court found that all of Sanders’ IAC claims fell within the scope of the collateral-attack waiver and ha d “nothing to do with an allegation that her counsel was ineffective in negotiating the plea or the waiver.” R. vol. 3, 93. With one exception, which we discuss below, Sande rs makes similar IAC arguments to this court, insisting that her counsel should have investig ated her career-offender enhancement and filed a direct appeal. Bu t reasonable jurists couldn’t debate the district court’s conclusion that these claims fall within th e scope of the waiver: they relate to Sanders’ sentence and not the negotiation of the plea. See Hahn , 359 F.3d at 1325. Second, the district court found th at Sanders knowingly and voluntarily waived her right to collateral review. Whet her a waiver of collateral review is knowing and voluntary depe nds primarily on two factors: (1) whether the plea agreement itself states th at the defendant entered the agreement knowingly and voluntarily and (2) whether there was an adequate co lloquy under Rule 11 of the Federal Rules of Criminal Procedure. See id. The district court carefully examined both of these factors—looking closely at the terms of the plea agreement and at the transcript of the plea hear ing—and determined that Sa nders’ waiver was knowing and voluntary. No reasonable juri st could debate this conc lusion: the plea agreement clearly stated the nature of the waiver ; Sanders indicated th at she understood and agreed to its terms; Sanders’ counsel indicated that he ha d fully advised her about the5 agreement; and at the plea hear ing, the district court speci fically discussed the waiver with Sanders. Third, the district court concluded that enforcing the appeal waiver wouldn’t result in a misca rriage of justice. See United States v. Leyva-Matos , 618 F.3d 1213, 1217 (10th Cir. 2010) (“[A] miscarriage of ju stice [results] only if (1) ‘the district court relied on an impermissible factor such as race,’ (2) counsel provided ineffective assistance in connection with the negotiation of the waiver, (3) ‘the sentence exceeds the statutory maximum,’ or (4) the waiver itself is otherwise unlawful.” (quoting Hahn , 359 F.3d at 1327)). Sanders didn’t ar gue below—and doesn’t expressly argue here—that enforcing the waiver would re sult in a miscarriag e of justice. Instead, in seeking a COA, Sanders mainly asserts that the sentencing court incorrectly classified her as a career offender because at least one of her prior convictions shouldn’t have c ounted as a controlled-substa nce offense (and that her counsel was ineffective for not pursuing this point at sentencing). But because Sanders’ sentence doesn’t exceed the stat utory maximum, we aren’t otherwise concerned with the lawfulness of her sentence; 2 instead, we are concerned only with the validity of her colla teral-attack waiver. See United States v. Porter , 405 F.3d 1136, 1145 (10th Cir. 2005) (enforcing appeal waiv er even though defendant’s

2 For purposes of determining whether a waiver of appellate rights will result in a miscarriage of ju stice, “statutory maximum” mean s what it usually means: “the upper limit of punishment that Congress has legislatively specified for the violation of a given statute.” United States v. Green , 405 F.3d 1180, 1191 –94 (10th Cir. 2005). Here, the statutory maximum Sanders fa ced was life in prison; her 130-month sentence doesn’t exceed that.6 sentence was based on mandatory applicati on of Guidelines provision that was subsequently held unconstituti onal). That the sentencing court may have misapplied the career-offender provisions is irreleva nt in the face of Sanders’ knowing and voluntary waiver of her right to collaterally attack her sentence. See United States v. Nguyen , 235 F.3d 1179, 1184 (9th Cir. 2000) (“Th e whole point of a waiver . . . is the relinquishment of claims regardless of their merit.”). It is Sanders’ burden to show that enforcing the waiver woul d result in a miscarriage of justice, and she hasn’t done so here. See Leyva-Matos , 618 F.3d at 1217–18. B Last, we turn to Sanders’ claim that her counsel was ineffective in advising her to enter the plea because he didn’t explain the potential sentence she faced if she pleaded guilty. This claim arguably falls out side the scope of th e collateral-attack waiver because it’s a claim of “ineffective assi stance in . . . en tering th[e] plea.” R. vol. 2, 22; see also United States v. Cockerham , 237 F.3d 1179, 1187 (10th Cir. 2001) (holding that waiver of postconviction rights doesn ’t waive right to bring § 2255 motion based on IAC claims challenging validity of plea); United States v. Fry , 629 F. App’x 823, 826–27 ( 10th Cir. 2015) (unpublis hed) (construing argument that counsel coerced defendant into signing plea agreement as im plicating counsel’s alleged ineffective assistance in “entering” plea). Neverthe less, we need not resolve this issue; even assuming th is claim falls outside the sc ope of the collateral-attack waiver, Sanders is only entitled to a COA if she also de monstrates that reasonable jurists could debate whethe r she has stated “a valid cl aim of the denial of a7 constitutional right.” Slack , 529 U.S. at 484. She hasn’t made that showing. The district court describe d Sanders’ claim that her attorney didn’t explain the Guidelines to her as “far-fetched” based on the reco rd. R. vol. 3, 97. And reasonable jurists couldn’t debate this conclusi on: Sanders’ after-the-fact al legation that her attorney didn’t explain the possible sent ences to her flies in the fa ce of the plea agreement and the plea-hearing colloquy. Cf. United States v. Harvey , 126 F. App’x 9 16, 918 (10th Cir. 2005) (unpublished) (de nying COA request where distri ct court found that IAC arguments falling outside collateral-attack waiver lacked merit based on plea agreement and colloquy). For instance, the plea agr eement stated the maximu m and minimum penalties for each count, including five counts for wh ich the maximum penalty was life in prison. At the plea hearing, Sanders told the court that she understood the maximum and minimum penalties and that she had “spe nt about two hours” with her attorney discussing the plea. R. vol. 5, 13. Moreover, when the district cour t told Sanders that (1) anything counsel might have told her about her likely sentence was only counsel’s “best estimate or guess,” R. vol. 5, 15, and (2) the court would be free to sentence her up to the maximum sentence of life in pris on, Sanders indicated that she understood. So even if this claim fall s outside of Sanders’ collatera l-attack waiver—thus allowing “jurists of reason” to “debat [e] whether the district court was correct in its procedural ruling,” Slack , 529 U.S. at 484—reasonable jurists c ouldn’t debate that Sanders’ bare allegations are insufficient to make “a substantial show ing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).8 * * * Reasonable jurists couldn’t de bate the district court’ s procedural ruling that the collateral-attack waiver bars all but one of Sanders’ IAC claims. And even if we assume reasonable jurists coul d debate whether the district court correctly dismissed Sanders’ final IAC claim on procedural grou nds, such jurists nevertheless couldn’t debate whether it “states a valid claim of the denial of a constitutional right.” See Slack , 529 U.S. at 484. Thus, we deny Sanders ’ COA request and dismiss the matter.

Entered for the Court
Nancy L. Moritz Circuit Judge