This panel has determined unanimously that oral argument 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 This order and judgment is not binding precedent, except under the

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.

F I LED

United States Court of Appeals

Tenth Circuit

March 23, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARTURO TRELLES-ALCAZAR,

Defendant-Appellant.

No. 06-4224

(D.C. No. 2:06-CR-198-TS)

(D. Utah)

ORDER AND JUDGMENT

*

Before KELLY, EBEL, and MURPHY, Circuit Judges.

Arturo Trelles-Alcazar pled guilty to one count of a four-count indictment,

admitting he possessed with intent to distribute over fifty grams of a mixture or

substance containing methamphetamine in violation of 21 U.S.C. § 841(a)(1). His

plea agreement recites that he 

knowingly, voluntarily and expressly waive[s] [his] right to appeal

any sentence imposed on [him], and the manner in which the
-2-

sentence is determined, on any of the grounds set forth in [18 U.S.C.

§ 3742] or on any ground whatever, except . . . (1) a sentence above

the maximum penalty provided in the statute of conviction as set

forth in [the agreement]; and (2) a sentence above the high end of the

guideline range as determined by the district court at sentencing, or,

in the event that no such determination is made by the district court,

a sentence above the high-end of the guideline range as set forth in

the final presentence report.

Statement by Def. in Advance of Plea of Guilty, at 3. The district court found the

guideline range to be 87-108 months and imposed a sentence of 87 months, far

under the statutory maximum of life imprisonment. Mr. Trelles-Alcazar appealed,

and the government moved to enforce his appeal waiver under United States v.

Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc). We grant the motion and

dismiss the appeal.

Under Hahn, 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.” Id. at 1325. The miscarriage-of-justice

prong requires the defendant to show (a) his sentence relied on an impermissible

factor such as race; (b) ineffective assistance of counsel in connection with the

negotiation of the appeal waiver rendered the waiver invalid; (c) his sentence

exceeded the statutory maximum; or (d) his appeal waiver is otherwise unlawful

and the error “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” Id. at 1327 (quotation omitted). The government’s motion
-3-

addresses these considerations, explaining why they do not undermine the appeal

waiver here. 

Counsel for Mr. Trelles-Alcazar responded to the motion by (a) stating that

the only legitimate issue still available for review would be ineffective assistance

of counsel in connection with the appeal waiver, but that it would be a conflict of

interest for him to assess his own effectiveness; and (b) asking that alternative

counsel be appointed for the purpose of conducting that assessment. Aplt. Resp.

to Motion for Enforcement of Plea Agreement, at 2 (filed Dec. 26, 2006). The

clerk sent a notice to Mr. Trelles-Alcazar on January 24, 2007, informing him of

these circumstances, directing him to file his own response within fourteen days

showing why his appeal waiver should not be enforced, and warning that

noncompliance could result in dismissal of the appeal. At the end of that period,

Mr. Trelles-Acazar filed a motion for enlargement of time to respond and for

appointment of different counsel. His motion was granted as to the requested

extension, which allowed him an additional fourteen days to respond. This second

deadline has long since passed without any further submission. 

The materials before us indicate that the only potential issue to be raised

concerns ineffective assistance of counsel in connection with the appeal waiver.

But this appeal is not the proper vehicle for that challenge. The record before us

includes formal representations by Mr. Trelles-Alcazar reflecting only the

adequacy of his representation in the proceedings, so any ineffective assistance
-4-

claim would have to rely on extra-record exchanges between counsel and client

beyond our purview. Such a claim must be raised by motion under 28 U.S.C.

§ 2255 rather than by appeal, United States v. Delacruz-Soto, 414 F.3d 1158,

1168 (10th Cir. 2005), and “[t]his rule applies even where a defendant seeks to

invalidate an appellate waiver based on ineffective assistance of counsel,” United

States v. Porter, 405 F.3d 1136, 1144 (10th Cir.) (citing Hahn, 359 F.3d at 1327

n.13), cert. denied, 126 S. Ct. 550 (2005). We note that Mr. Trelles-Alcazar’s

plea agreement also waived collateral review, Statement by Def. in Advance of

Plea of Guilty, at 4, but, like the appeal waiver, that does not bar an ineffective

assistance claim relating to negotiations leading to the waiver itself. Accordingly,

we grant the government’s motion to dismiss this appeal, though that ruling does

not preclude or prejudice an ineffective assistance claim properly pursued through

collateral proceedings under § 2255. 

The government’s motion is GRANTED and this appeal is DISMISSED.

Appellant’s motion for appointment of counsel is DENIED. The mandate shall

issue forthwith.

ENTERED FOR THE COURT

PER CURIAM