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.) 

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ORDER AND JUDGMENT*

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Before LUCERO, EBEL, and PHILLIPS, Circuit Judges. 

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After entering into a plea agreement that included a waiver of his right to 

appeal, Richard Anthony Nevarez-Barela pleaded guilty to conspiracy to transport 

illegal aliens, a violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I). He was sentenced to a 

six-month term of imprisonment 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 unanimously that oral argument would not 

materially assist in 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This order and judgment is not binding precedent, except under the doctrines of law 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 

August 16, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). We grant the motion 

and dismiss the appeal. 

 Whether an appeal waiver is enforceable is a question of law. United States v. 

Ibarra-Coronel, 517 F.3d 1218, 1221 (10th 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 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.” 359 F.3d at 1325. “The burden 

rests with the defendant to demonstrate that the appeal waiver results in a miscarriage 

of justice.” United States v. Anderson, 374 F.3d 955, 959 (10th Cir. 2004). 

Mr. Nevarez-Barela first argues that enforcing 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 appeal waiver results in a miscarriage of 

justice only in four situations: “[1] where the district court relied on an 

impermissible factor such as race, [2] where ineffective assistance of counsel in 

connection with the negotiation of the waiver 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 situations occurred. His 

argument about the sentencing hearing does not pertain to the lawfulness of the 
3 

waiver itself. As a result, he has not shown that enforcing the waiver 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 plea agreements . . . is that 

they represent a bargained-for understanding between the government and criminal 

defendants in which each side foregoes certain rights and assumes certain risks in 

exchange for a degree of certainty as to the outcome of criminal 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. Nevarez-Barela cites no authority for the 

proposition that the lack of congruency between the benefits received by each side 

from appeal waivers renders them unconscionable 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 the appeal waiver that is not apparent on the face of the 

record. “[A] defendant must generally raise claims of ineffective assistance of 

counsel in a collateral proceeding, not on direct review.” Porter, 405 F.3d at 1144. 

“This rule applies even where a defendant seeks to invalidate an appellate waiver 

based on ineffective assistance counsel.” Id.
4 

The motion to enforce is granted, and this appeal is dismissed. 

Entered for the Court 

Per Curiam