UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.RICHARD ANTHONY NEVAREZBARELA, Defendant - Appellant. No. 17-2092 (D.C. No. 2:17-CR-00862-KG-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , EBEL , and PHILLIPS , Circuit Judges.

________________ _________________ After entering into a plea agreement that included a waiver of his right to appeal, Richard Anthony Nevarez-Barela pl eaded guilty to conspiracy to transport illegal aliens, a violation of 8 U.S.C. § 132 4(a)(1)(A)(v)(I). He was sentenced to a six-month term of imprisonm ent followed by up to six months in a halfway house, which was within the advisory guidelines range. Despite the waiver, he appealed. The government has moved to enforce the appeal waiver. See United States v. Hahn ,

* This panel has determined unanim ously that oral argument would not materially assist in the dete rmination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cas e is therefore ordered submitt ed without oral argument. This order and judgment is not binding pre cedent, except under the doctrines 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 

### August 16, 2017
Elisabeth A. Shumaker Clerk of Court2 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curi am). We grant the motion and dismiss the appeal. Whether an appeal waiver is en forceable is a question of law. United States v. Ibarra-Coronel , 517 F.3d 1218, 1221 (10t h Cir. 2008). Under Hahn , we evaluate a motion to enforce a waiver by considering “(1) whether the disputed appeal falls within the scope of the waiver of appe llate rights; (2) whether the defendant knowingly and voluntarily waived his appell ate rights; and (3) whether enforcing the waiver would result in a miscarriage of ju stice.” 359 F.3d at 1325. “The burden rests with the defendant to de monstrate that the appeal waiv er results in a miscarriage of justice.” United States v. Anderson , 374 F.3d 955, 959 (10th Cir. 2004). Mr. Nevarez-Barela first argues that en forcing the waiver would result in a miscarriage of justice because the district court failed to enunciate any rationale for imposing his sentence. But enforcing an a ppeal waiver results in a miscarriage of justice only in four situa tions: “[1] where the dist rict court relied on an impermissible factor such as race, [2] wh ere ineffective assist ance of counsel in connection with the negotiation of the waiv er renders the waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise unlawful.” United States v. Polly , 630 F.3d 992, 1001 (10th Cir. 2011) (alteration in original) (internal quotation marks omitted) . Mr. Nevarez-Barela does not present any facts or argument that would show any of these four situa tions occurred. His argument about the sentencing hearing does not pertain to the lawfulness of the3 waiver itself. As a result, he has not show n that enforcing the wa iver will result in a miscarriage of justice. Mr. Nevarez-Barela next contends that the appeal waiver is unconscionable because the government is not subject to a similar bar. But both the accused and the government benefit from appeal waivers. “The essence of pl ea agreements . . . is that they represent a bargained-for understa nding between the government and criminal defendants in which each side foregoes cert ain rights and assume s certain risks in exchange for a degree of certainty as to the outcome of cr iminal matters.” United
States v. Porter , 405 F.3d 1136, 1145 (10th Cir. 2005). “A waiver of appellate rights can be of great value to an accused as a means of gaining concessions from the government,” while the government benefits “by saving . . . time and money involved in arguing appeals.” United States v. Elliott , 264 F.3d 1171, 1174 (10th Cir. 2001) (internal quotation marks omitted). Mr. Ne varez-Barela cites no authority for the proposition that the lack of congruency between the bene fits received by each side from appeal waivers renders them unconsci onable or undermines the strong public policy reasons for favoring them, see id. Finally, Mr. Nevarez-Barela contends that he received ineffective assistance of counsel in the negotiation of th e appeal waiver that is not apparent on the face of the record. “[A] defendant must generally ra ise claims of ineffe ctive assistance of counsel in a collateral proceed ing, not on direct review.” Porter , 405 F.3d at 1144. “This rule applies even wher e a defendant seeks to inva lidate an appellate waiver based on ineffective as sistance counsel.” Id.4 The motion to enforce is granted, and this appeal is dismissed.

Entered for the Court Per Curiam