UNITED STATES COURT 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. §§ 2113(a) and (d). By plea agreement, Mr. McDonald 

waived the right to appeal his sentence unless it exceeded the 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 indicated that the issue he would 

 

* This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 25, 2012

Elisabeth A. Shumaker 

Clerk of Court
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like to raise is whether the record was sufficient to determine that his conviction 

under a Kansas criminal-threat statute constituted a prior crime of violence 

supportive of the sentencing court’s determination that he was a career offender 

under § 4B1.1 of the United States Sentencing Guidelines. 

 The government has moved to enforce the appeal waiver under United States 

v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (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 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. 

Mr. McDonald’s counsel filed a response indicating that Mr. McDonald agrees 

that the first two Hahn factors have been met, but he may want to contest whether he 

received effective assistance of counsel in negotiating the appeal waiver, which is 

one way a miscarriage of justice can result. See id. at 1327 (listing four situations 

where a miscarriage of justice may result, including “where ineffective assistance of 

counsel in negotiation of [an appeal] waiver renders the waiver invalid”). But as 

counsel recognizes, that argument generally should be raised in a collateral 

proceeding under 28 U.S.C. § 2255, rather than on direct appeal, since the district 

court has not had an opportunity to develop the factual record on the issue. See, e.g., 

United States v. Ibarra-Coronel, 517 F.3d 1218, 1222 (10th Cir. 2008) (recognizing 

claim of ineffective assistance of trial counsel usually must be raised in collateral 
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proceeding); Hahn, 359 F.3d at 1327 & n.13 (recognizing ineffective assistance of 

counsel as exception to enforcing appellate waiver, but reiterating longstanding rule 

that such claims are generally properly considered on collateral review). 

 Nonetheless, we have conducted an independent review of the plea agreement, 

change of plea hearing transcript, sentencing 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 assistance of counsel claim concerning the 

negotiation of his appeal waiver in a collateral proceeding. 

The government’s motion to enforce the plea agreement is GRANTED and the 

appeal is DISMISSED. 

 Entered for the Court 

 Per Curiam