UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DERRICK D. MCDONALD, a/k/a D-Bird, Defendant-Appellant. No. 12-3182 (D.C. No. 6:11-CR-10158-EFM-1) (D. Kan.)

ORDER AND JUDGMENT *

Before KELLY , MURPHY , and TYMKOVICH , Circuit Judges.
Derrick D. McDonald pleaded guilty to two counts of bank robbery in violation of 18 U.S.C. §§ 21 13(a) and (d). By plea agreement, Mr. McDonald waived the right to appeal his sentence unless it exceeded th e advisory guideline range, which was 188 to 235 months in prison. The district court sentenced him to 204 months’ imprisonment. Notwithstanding the appeal waiver, Mr. McDonald filed a notice of appeal. In his docketing statement, he indica ted that the issue he would

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

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Elisabeth A. Shumaker Clerk of Court- 2 - like to raise is whether the record was su fficient to determin e that his conviction under a Kansas criminal-t hreat statute constituted a prior crime of violence supportive of the sentencing court’s dete rmination that he was a career offender under § 4B1.1 of the United St ates Sentencing Guidelines. The government has moved to enforce the appeal waiver under United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) (en ba nc) (per curiam). In evaluating a motion to enforce a waiver, we consider “(1) whether the disputed appeal falls within the scope of the waiver of appellate right s; (2) whether the de fendant knowingly and voluntarily waived his appellate rights; a nd (3) whether enforcing the waiver would result in a miscarri age of justice.” Id. at 1325. Mr. McDonald’s counsel f iled a response indicating th at Mr. McDonald agrees that the first two Hahn factors have been met, but he may want to contest whether he received effective as sistance of counsel in negotiati ng the appeal waiver, which is one way a miscarriage of justice can result. See id. at 1327 (listing f our situations where a miscarriage of justice may result, including “whe re ineffective assistance of counsel in negotiation of [an appeal] waiver renders the wa iver invalid”). But as counsel recognizes, that argument generall y should be raised in a collateral proceeding under 28 U.S.C. § 2255, rather th an on direct appeal, since the district court has not had an opportunity to deve lop the factual record on the issue. See, e.g., United States v. Ibarra-Coronel , 517 F.3d 1218, 1222 (10t h Cir. 2008) (recognizing claim of ineffective a ssistance of trial counsel usually must be raised in collateral- 3 - proceeding); Hahn , 359 F.3d at 1327 & n.13 (rec ognizing ineffective assistance of counsel as exception to enforcing appellate waiver, but reiterating longstanding rule that such claims are generally prope rly considered on collateral review). Nonetheless, we have conducted an i ndependent review of the plea agreement, change of plea hearing transcript, sent encing hearing transcript, and motion to enforce. After doing so, we conclude that the Hahn requirements for enforcing the plea waiver at this time have been satisfied. As his counsel states, Mr. McDonald may properly bring an ineffective assi stance of counsel cl aim concerning the negotiation of his appeal waiver in a collateral proceeding. The government’s motion to enforce th e plea agreement is GRANTED and the appeal is DISMISSED.

Entered for the Court Per Curiam