UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

IGNACIO SALCIDO, JR., 

 Defendant - Appellant.

No. 19-2040

(D.C. No. 2:16-CR-04290-KG-1)

(D. N.M.)

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ORDER AND JUDGMENT*

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Before MATHESON, PHILLIPS, and EID, Circuit Judges.

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

appeal waiver in Ignacio Salcido, Jr.’s plea agreement. Exercising jurisdiction under 

28 U.S.C. § 1291, we grant the motion and dismiss the appeal.

BACKGROUND

Salcido pleaded guilty to transportation of a person under 18 with intent to 

engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a). The written plea 

agreement provided a detailed advisement about the possible sentences. As pertinent 

here, it indicated that Salcido was subject to a statutory mandatory minimum 

 * This order and judgment is not binding precedent, except under the doctrines 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

August 8, 2019

Elisabeth A. Shumaker

Clerk of Court
2

sentence of 120 months’ imprisonment but could be sentenced to up to life in prison, 

Mot. to Enforce, Attach. 1 at 2, and that the parties had stipulated that 120 to 135 

months was the appropriate sentence in this case, id. at 4. The plea agreement also 

indicated that Salcido had agreed—with no exceptions—to waive his “right to appeal 

[his] conviction[] and any sentence” imposed in compliance with the agreement. Id.

at 8. By signing the written plea agreement, he acknowledged that he was entering 

his plea knowingly and voluntarily and that he understood its consequences, 

including the statutory minimum and maximum sentences, stipulated sentencing 

range, and appeal waiver. 

At the change of plea hearing, Salcido assured the court that he had read and 

discussed the plea agreement with counsel before signing it and that he understood its 

terms. The court reminded him twice about the appeal waiver, and it confirmed that 

he “completely” understood that by accepting the plea agreement he was waiving his 

right to appeal. Id. at 21-22, 35. With respect to sentencing, the court reminded 

Salcido of the stipulated sentencing range, the 120-month mandatory minimum, and 

the possibility that if convicted at trial he could be sentenced to up to the statutory 

maximum of life in prison. At every step, Salcido confirmed that he understood the 

court’s advisement. 

Although he initially expressed reservations about pleading guilty, he 

ultimately assured the court that he had weighed the “pros and cons” and had 

concluded that it was “in [his] best interest[s]” to plead guilty, id. at 30, and to accept 

“10 to 12 years versus facing 22 years” or more, id. at 19. When the court offered to 
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end “this plea hearing, forget about the Plea Agreement, and proceed with [a] trial,” 

Salcido declined, reaffirming his desire to accept the terms of the plea agreement. Id. 

at 18. And after the prosecutor explained the elements of the offense and outlined the 

government’s evidence, Salcido admitted that he was guilty. Based on Salcido’s 

responses to the court’s questions and its observations of his demeanor during the 

change of plea hearing, the court accepted his plea as having been knowingly and 

voluntarily entered. 

The initial presentence report (PSR) indicated that based on the total offense 

level and Salcido’s criminal history category the guidelines range under the plea 

agreement was 97 to 121 months but that, because the 120-month mandatory 

minimum was greater than the minimum of the guidelines range, the effective 

guidelines range was 120 to 121 months. The initial PSR calculated that the 

guidelines range if Salcido were convicted at trial would be 135 to 168 months. The 

government objected to those guidelines calculations, arguing that a two-level 

vulnerable victim enhancement applied. The Probation Office agreed and submitted 

an amended PSR with adjusted guidelines ranges of 121 to 151 months under the plea 

agreement, and 168 to 210 months if Salcido were convicted after trial.

After the court accepted his plea but before sentencing, Salcido, represented by 

substitute court-appointed counsel, moved to withdraw his plea on the grounds that 

he had a credible defense, that plea counsel conducted an inadequate pre-trial 

investigation, and that he was coerced into pleading guilty by the threat of a potential 

life sentence. The judge who ruled on the motion was the same judge who had 
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presided at the change of plea hearing. After a hearing on the motion, the court

rejected each of Salcido’s arguments on the merits and denied the motion, finding 

that he failed to show a fair and just reason for his request to withdraw his plea. 

See Fed. R. Crim. P. 11(d)(2)(B) (providing that a defendant can withdraw a guilty 

plea after entry of the plea but before sentencing if he “can show a fair and just 

reason for requesting the withdrawal”).

At the subsequent sentencing hearing, the court sustained Salcido’s objection 

to the vulnerable victim enhancement and adopted a guidelines range of 97 to 121 

months, making the effective guidelines range 120 to 121 months. The court then 

sentenced Salcido to the statutory minimum term of 120 months’ imprisonment. 

DISCUSSION

“Whether a defendant’s appeal waiver . . . is enforceable is a question of law 

we review de novo.” United States v. Ibarra-Coronel, 517 F.3d 1218, 1221 

(10th Cir. 2008). In ruling on a motion to enforce, we consider: “(1) whether the 

disputed appeal falls within the scope of the waiver of appellate rights; (2) whether 

the defendant knowingly and voluntarily waived his appellate rights; and (3) whether 

enforcing the waiver would result in a miscarriage of justice.” United States v. Hahn, 

359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). 

Here, Salcido acknowledges that his sentence is within the scope of the appeal 

waiver and he does not contend that enforcing it would result in a miscarriage of 

justice. Thus, the only question before us is whether his waiver was knowing and 

voluntary. See United States v. Porter, 405 F.3d 1136, 1143 (10th Cir. 2005)
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(holding that this court need not address a Hahn factor that the defendant does not 

contest).

In determining whether a defendant knowingly and voluntarily waived his 

appellate rights, we examine the language of the plea agreement and the adequacy of 

the Fed. R. Crim. P. 11 plea colloquy. Hahn, 359 F.3d at 1325. “[I]f the defendant 

did not voluntarily enter into the agreement, the appellate waiver subsumed in the 

agreement also cannot stand.” United States v. Rollings, 751 F.3d 1183, 1189 

(10th Cir. 2014). “[A] properly conducted plea colloquy, particularly one containing 

express findings, will, in most cases, be conclusive on the waiver issue, in spite of a 

defendant’s post hoc assertions to the contrary.” United States v. Tanner, 721 F.3d 

1231, 1233 (10th Cir. 2013) (per curiam). It is Salcido’s burden to “present evidence 

establishing that he did not understand the waiver.” United States v. Cudjoe, 

634 F.3d 1163, 1166 (10th Cir. 2011). 

Salcido does not claim he did not understand the appeal waiver. Rather, 

although he does not seek to withdraw his plea, he claims the plea—not just the 

appeal waiver—was not knowing and voluntary because (1) the district court told 

him he would receive a life sentence if convicted at trial, and (2) plea counsel was 

ineffective.

The record does not support Salcido’s assertion that the court advised him that 

the only option if he were convicted at trial was a life sentence. To the contrary, the 

record demonstrates that he was advised both in writing and by plea counsel that if 

convicted at trial he “might face a much higher sentence,” Mot. to Enforce, Attach. 2 
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at 6, and that, whether convicted following a jury trial or pursuant to a guilty plea, 

the district court had the discretion to determine what the ultimate sentence would be. 

When the court asked Salcido whether he understood those advisements, he 

repeatedly confirmed that he did. The court then explained that it could reject the 

parties’ stipulated sentencing range by refusing to accept the plea agreement, but that 

if it accepted the agreement, it was required to impose a sentence within the 

stipulated range. Salcido said he understood and that his “hope is that . . . the Court 

would approve the agreement so that I can avoid a longer sentence.” Id. at 22. 

Salcido’s reliance on the court’s statement that a life sentence “would be the 

consequence for being convicted at trial,” id. at 27, ignores the context of the court’s 

statement. At that point in the hearing, Salcido was reiterating that his decision to 

plead guilty was motivated primarily by the desire to avoid a lengthy prison sentence. 

He explained that he recognized that if convicted at trial, he “face[d] 20, 25 years to 

life,” and said the choice between admitting guilt and avoiding a longer prison 

sentence “feels” like “coercion.” Id. at 26. Salcido and the court then had the 

following exchange:

THE COURT: Well, if you’re feeling coerced, well, I don’t have to 

accept your plea of guilty. Even if you stand there and say “I'm 

guilty,” if you’re telling me that you were feeling coerced to plead 

guilty, I don’t have to accept it.

THE DEFENDANT: And I understand that, as well, Your Honor, 

and that creates [an] issue for me, as well, because my -- my hope 

would be that the Court would approve the plea. I’m just trying to 

be as honest to the questions that you’re asking me.
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THE COURT: Well, I’m trying to be as plain for you as possible 

and making it as simplistic as possible so that there is no 

confusion. Ultimately, you can decide not to plead guilty.

THE DEFENDANT: With the -- With the threat imposed, though.

THE COURT: Well, what would be the threat as you see it?

THE DEFENDANT: Life sentence, maybe.

THE COURT: That would be the consequence for being convicted 

at trial.

THE DEFENDANT: Well, thank you, Your Honor. That clears it 

up.

Id. at 26-27. The court’s statement was thus describing Salcido’s fear that he would 

be sentenced to life if convicted at trial, not suggesting that he actually would receive 

a life sentence. 

Salcido’s express recognition before this colloquy that he understood his 

options—pleading guilty and being sentenced to between 10 and 12 years or 

proceeding to trial and facing between 20 years to life—belies his claim that the court 

misled him into thinking he would definitely be sentenced to life if convicted after 

trial. On this record, we conclude that Salcido’s allegations that he did not 

understand his sentencing options are insufficient to overcome his sworn declarations 

both in writing and in open court that he did.

1

 

 1 The cases Salcido cites to support his argument are inapposite, because they 

address Rule 11’s prohibition against judicial involvement in plea negotiations, 

which guards against the risk of a court using threats of lengthy sentences to coerce a 

defendant to enter into an involuntary guilty plea. See, e.g., United States v. 

Cano-Varela, 497 F.3d 1122, 1124, 1135 (10th Cir. 2007) (vacating guilty plea 

because district court improperly participated in plea negotiations).
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Salcido also claims his plea was involuntary because he received ineffective 

assistance of counsel. Specifically, he claims counsel failed to tell him the initial 

PSR calculated that the guidelines range if he were convicted at trial would be 135 to 

168 months and that he would not have pleaded guilty if he had known the range 

could be that low. But it has long been the rule that ineffective-assistance claims 

generally should be raised in collateral proceedings under 28 U.S.C. § 2255, not on 

direct review. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)

(en banc). “This rule applies even where a defendant seeks to invalidate an appellate 

waiver based on ineffective assistance of counsel.” Porter, 405 F.3d at 1144; 

see also Hahn, 359 F.3d at 1327 n.13. We thus decline to consider Salcido’s claim.

CONCLUSION

Accordingly, we grant the government’s motion to enforce the appeal waiver 

and dismiss the appeal.

Entered for the Court

Per Curiam