UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. VICTOR A. HERNANDEZ-DELGADO, Defendant - Appellant. No. 13-3319 (D.C. No. 2:12-CR-20066-KHV-JPO-44) (D. Kan.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, O’BRIEN and MATHESON , Circuit Judges.
After entering into a plea agreement th at included a waiver of his right to appeal, defendant Victor A. Hernandez- Delgado pleaded guilty to one count of conspiracy to manufacture, to possess with intent to di stribute, and to distribute 280 grams or more of cocai ne base and 5 kilograms or more of cocaine. The agreement acknowledges that “defendant know ingly and voluntarily waives any right

* This panel has determined that oral ar gument would not materially assist 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 ma y 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 

### April 14, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - to appeal or collaterally attack any matter in connec tion with this prosecution, conviction and sentence,” with the excep tion of any “claims with regard to ineffective assistance of counsel or pros ecutorial misconduct,” provided that “the Court imposes the sentence requested by the pa rties.” Dist. Ct. doc. 666 at 8-9. The district court sentenced defe ndant to 180 months’ imprisonm ent, consistent with the parties’ joint recommendation under the ag reement. Unhappy with his sentence, defendant initiated the instant appeal. The government has filed a motion to enforce the appeal waiver in the plea agreement. We grant the motion and dismiss the appeal. The government’s motion expl ains in facially suffic ient fashion that this appeal implicates the appeal waiver, that the waiver was knowing and voluntary, and that there are no circumstances to suggest a miscarriage of jus tice to excuse the waiver. See generally United States v. Hahn , 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam) (summarizing thr ee components of court’s inquiry when addressing a motion to enforce appeal waiv er). In response, defendant’s counsel explained that the issues defendant wi shed to pursue on appeal “are almost exclusively claims of ineffect ive assistance of counsel [tha t] would, as noted in [the government’s] Motion for Enforcement, be more appropriately raised in a post-conviction proceeding unde r 28 U.S.C. § 2255.” Defenda nt’s Resp. to Mot. for Enforcement, at 2. The one excepti on was a claim that counsel’s alleged ineffectiveness “render[ed] [d efendant’s] guilty plea involunt ary,” in that “he was not- 3 - afforded sufficient information about his case fro m his counsel” and as a result “counsel forced him to accept the plea . . . without any kn owledge of what type of sentence he would have been lawfully subject to.” Id. at 3, 4. Counsel also moved to withdraw under Anders v. California , 386 U.S. 738 (1967), which contemplates withdrawal by counsel in the event of a frivolous appeal. This court gave defendant an opportunity to reply to counsel’s filing, but the deadline for th at reply has passed with nothing forthcoming from defendant. When appellate counsel moves to withdraw under Anders , we must examine the proceedings and determine whether the appeal is “w holly frivolous.” Id. at 744. In the present context, that means we must assess wh ether there is a non-frivolous argument to be made in opposition to the government’s motion to enforce the appeal waiver. We see none. Claims of ineffective assistance should in nearly all cases be raised in collateral proceedings under § 2255; if “b rought on direct a ppeal [they] are presumptively dismissibl e, and virtually all will be dismissed.” United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). Such claims may be considered on direct appeal “only where th e issue was raised before and ruled upon by the district court and a sufficient factual record exists.” United States v. Flood , 635 F.3d 1255, 1260 (10th Cir. 2011). Neither condition is satisfied here. Because “[t]his rule applies even where a defendant seeks to invalidate an appellate waiver based on ineffective as sistance of counsel,” United States v. Porter , 405 F.3d 1136,- 4 - 1144 (10th Cir. 2005), the approp riate course is to dismi ss the claim fro m the appeal, thereby leaving the appeal waiver in forc e, but preserve the defendant’s right to pursue the claim on collateral review under § 2255, see, e.g. , United States v. Polly , 630 F.3d 991, 1003 ( 10th Cir. 2011). That leaves defendant’s contention that his pl ea was not knowing and voluntary because counsel did not provide him with information about the potential sentence he faced. This claim is flatly contradicted by th e petition to enter the plea, the plea agreement, and the co lloquy at defendant’s plea h earing. These show that defendant was informed of the statutory minimum (ten years) and maximum (life) sentences applicable to the count of conviction, as well as the statutorily mandated life sentence he would have faced had the go vernment not agreed to forgo seeking the enhancement under 21 U.S.C. §§ 841(b)(1)(A ) and 851 based on several prior felony drug convictions. Moreover, to the extent defendant may be co mplaining that he misunderstood the relevant guideline range due to a mistaken estimation by counsel, erroneous guideline predictions by coun sel do not make a plea unknowing or involuntary, particularly where, as here , the defendant expres sly acknowledged that the applicable guideline range could not be anticipated with any certainty because it is a matter ultimately within the di scretion of the district court. See United States v. Silva , 430 F.3d 1096, 1099 (10th Cir. 2005) (“[S]tanding alone, an attorney’s erroneous sentence estimate does not render a plea involuntary.”).- 5 - In light of the above, opposition to the government’s motion to enforce the appeal waiver would be w holly frivolous. We theref ore grant the government’s motion as well as counsel’s mo tion to withdraw. The app eal is dismissed. This disposition is without prejudice to any motion brought by defendant under § 2255 asserting ineffective as sistance of counsel.

Entered for the Court Per Curiam