UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MARIO SAUCEDO-AVALOS, Defendant - Appellant. No. 15-3270 (D.C. No. 2:14-CR-20071-JAR-2) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , HARTZ , and HOLMES , Circuit Judges.

________________ _________________ Mario Saucedo-Avalos pled guilty to cons piracy with intent to distribute more than 50 grams of methamphetamine and was sentenced to a term of 360 months in prison followed by five years of supervis ed release. Although his plea agreement included a broad waiver of a ppellate rights, he brought this appeal to challenge his plea and conviction on numerous grounds. The government has moved to enforce the appeal waiver under United States v. Hahn , 359 F.3d 1315, 1325, 1328 (10th Cir. 2004) (en banc) (per curiam ). We grant the motion a nd dismiss the appeal, though

* 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 

### April 13, 2016
Elisabeth A. Shumaker Clerk of Court2 we do so without prejudice to any post-co nviction motion Mr. Sa ucedo-Avalos may file under 28 U.S.C. § 2255 raising the multiple ineffective-assistan ce claims he has attempted to assert here. In his plea agreement, Mr. Sauce do-Avalos “knowingly and voluntarily waive[d] any right to appeal . . . any matt er in connection with this prosecution, his conviction, or the components of the senten ce to be imposed,” in cluding “any right to challenge his sentence, or the manner in wh ich it was determined, . . . except to the extent, if any, the [district court] de parts upwards from the sentencing Guideline range that the [district court] determines to be applicable.” Dist. Ct. Doc. 177, at 10. The agreement also excepted fr om the waiver “any subsequent claims with regards to ineffective assistance of counsel or prosecutorial misconduct.” Id. The government’s motion to enforce th e appeal waiver de monstrates in a facially sufficient manner that (1) the waiver generally app lies to this appeal, (2) the waiver was knowing and voluntary, and (3) there are no circumst ances evident on the record to suggest a mi scarriage of justice. 1 See Hahn , 359 F.3d at 1325 (summarizing three components of court’s inquiry when enforc ing appeal waiver). In response, Mr. Saucedo-Aval os’ counsel stated he co uld discern no non-frivolous grounds to oppose the waiver, and moved to withdraw under Anders v. California , 386 U.S. 738 (1967). He did, however, note two issues evident fr om the record “that

1 A miscarriage of justice occurs when (a) “the dist rict court relied on an impermissible factor such as race”; (b ) “ineffective assistan ce of counsel in connection with the negotiation of the waiver renders the waiver invalid”; (c) “the sentence exceeds the statutory ma ximum”; or (d) “the waiver is otherwise unlawful.” Hahn , 359 F.3d at 1327 (internal quotation marks omitted).3 might arguably support the app eal,” as per his duty under Anders

. Id. at 744. Mr. Saucedo-Avalos then submitted his own pro se response to the government’s motion, specifying several issues he wishes to raise on appeal. We hold none of these issues provides grounds for circumventing the waiver in the plea agreement. Counsel first notes that the district cour t did not inform Mr. Saucedo-Avalos at the plea hearing about several matters pertai ning to his guilty plea and the rights he was waiving: that the govern ment could use against him in a prosecution for perjury or false statement any statem ent he made under oath; that he had a right to counsel not only at trial but at every stage of the proceeding; and that he had a right not only to call and cross-examin e witnesses but also to compel the attendance of witnesses. But counsel explains that this (belatedly raised) omission could constitute prejudicial error affecting substantial ri ghts, as required to undermine the validity of his plea and associated appeal waiver, only if Mr. Sa ucedo-Avalos showed he would not have pled guilty had he been in formed of these points. See United States v. Rollings , 751 F.3d 1183, 1191 (10th Cir.), cert. denied , 135 S. Ct. 494 (2014). Counsel notes there is no support in the r ecord for such a showing. Indeed, the petition to plead guilty specifically recited ever y one of these points , see Dist. Ct. Doc. 176, at 1-2, and also represented Mr. Sa ucedo-Avalos had “read, unde rstood, and discussed with [his] attorney” everyt hing in the petition, id. at 5. See Rollings , 751 F.3d at 1191 (“If a defendant receives the information omitted by the district court from other sources, he generally cannot demonstrat e that he would not have pleaded guilty had the court also so informed him.” (internal quotati on marks omitted)). Finally, Mr. Saucedo-4 Avalos himself does not contend the omission of a reference to th ese matters at the plea hearing had any effect on his decision to plead guilty. Under the circumstances, we see no reason for refusing to enforce the appeal waiver on this basis. Counsel also notes Mr. Saucedo-Avalos may wish to argue on appeal that the district court failed to make particularized findings at sentencing as to drug quantities attributable to him and th at such an omission was plain error, as found in United States v. Biglow , 554 F. App’x 679, 684-85 (10th Ci r. 2014). But counsel notes the district court did make a specific finding attributing to Mr. Saucedo-Avalos a drug transaction involving 13 pounds of metham phetamine, which was it self a sufficient basis for the offense level found in support of the senten ce imposed. Thus, counsel concedes, Mr. Saucedo-Avalos could not show that any erro r in the completeness of the district court’s findings “affected the outcome of the district court [sentencing] proceedings,” as required to avoid the app eal waiver under the “otherwise unlawful” prong of the miscarriage-of-justice exception, United States v. Ibarra-Coronel , 517 F.3d 1218, 1222 (10th Cir. 2008) (internal quotation marks omitted). In any event, we note a more basic problem with relying on this alleged sentencing error (in contrast to an error potentia lly affecting the plea and asso ciated appeal waiver) to oppose the government’s motion to enforce: this court has repeat edly held that an appeal waiver cannot be avoided simply by raising possible error with respect to the computation of sentence, because to do so w ould be to nullify an appeal waiver based on the very sort of claim it was intended to waive. See United States v. Smith , 500 F.3d 1206, 1213 (10th Cir. 2007) (explaini ng this is import of Hahn ’s statement5 that miscarriage-of-justice ex ception “looks to whether the waiver is otherwise unlawful, . . . not to whether another aspe ct of the proceeding may have involved legal error” (internal quot ation marks omitted)). In his pro se response, Mr. Saucedo-Aval os advances several objections to his counsel’s performance. But cl aims of ineffective assist ance of counsel should in nearly all cases be raised in collateral proceedings; if “broug ht on direct appeal [they] are presumptively dismissible.” United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (en ba nc). In particular, such clai ms are not available on direct appeal when, as here, they were not “rai sed before and ruled upon by the district
court.” United States v. Flood , 635 F.3d 1255, 1260 (10th Ci r. 2011). And this rule of unavailability applies even though the ine ffective-assistance claim is invoked in an effort to invalidate an appeal waiver. See United States v. Porter , 405 F.3d 1136, 1143-44 (10th Cir. 2005). Under such circum stances, we properly enforce the appeal waiver on direct appeal, see id. at 1144, but do not there by prejudice the defendant’s ability to pursue the in effective-assistance clai ms on collateral review, see, e.g. , United States v. Polly , 630 F.3d 991, 1003 ( 10th Cir. 2011). Mr. Saucedo-Avalos also alleges that, due to an equipment malfunction, he was denied a meaningful opportunity to part icipate in his senten cing hearing. Even assuming this objection to the hearing proces s is not the sort of sentence-computation error categorically excluded from the miscarriage-of-justice inquiry under Smith , it still fails to avoid the app eal waiver by satisfying the outcome-determinative test required for invoking the “other wise unlawful” principle, see Ibarra-Coronel ,6 517 F.3d at 1222. Mr. Saucedo-Avalos has not even attempted to show his sentence was in any way affected by the conse quences of the alleged malfunction. Mr. Saucedo-Avalos contends a passage of the plea transcript indicates that he did not know the nature of the charge to which he pled guilty (notwithstanding recitations in the plea agreemen t, the plea petition, and at th e hearing to the contrary). The cited passage reflects Mr. Saucedo-Aval os conferring briefl y with his counsel after the court noted the st atutory sentencing range, because “he wanted to know what he was specifically charged with, and [counsel] advised him [it was] the conspiracy with intent [count ],” Dist. Ct. Doc. 280, at 17. The court asked if they needed more time to discuss it, and counsel stated: “I don’ t believe so, Your Honor. I think he understands that.” Id. While Mr. Saucedo-Aval os is a Spanish speaker with limited English skills, an interpre ter was used at the plea hearing and Mr. Saucedo-Avalos never indicated hi s understanding of the proceedings was compromised by language difficulties. On th e contrary, he affirmatively represented that he was able to unde rstand the interpreter. Id. at 3. Under the circumstances, his conclusory and unsubstantiate d (indeed, contradicted) as sertion that he did not understand the charge to which he pled gu ilty does not suffice to demonstrate that his appeal waiver is unenforceable. Cf. Ibarra-Coronel , 517 F.3d at 1222-23. In a similar vein, Mr. Saucedo-Avalos points to another passage of the plea transcript in which the prosecutor proffe red the factual basis of the plea by asking him if he had reviewed facts recited over several pages of the plea agreement and whether they accurately refl ected what the government could prove at trial. See Dist.7 Ct. Doc. 280, at 20. He answered yes to bot h inquiries. He now c ontends this record alone cannot establish that he understood what facts the pr osecutor was referring to, particularly given his counsel ’s failure to use an interp reter when previously going over the plea agreement with him. Signifi cantly, he does not claim that those facts were false, that there was actually no factual basis for his guilty plea, or that his decision to plead guilty had anything to do with the particular fa cts proffered to support his guilt of the offense he admitt ed committing. Under the circumstances, Mr. Saucedo-Avalos has not shown that a ny deficiency in the record made by the prosecution with respect to the factual basi s for his plea affected its validity and, consequently, the enforceability of the associated appeal waiver. See Rollings , 751 F.3d at 1193. More apt in that critical re spect, at least facially, is his final contention that, due to the lack of an inte rpreter during his discussions with counsel, he “developed a belief that he was pleading guilty in ex change for a 10 year maximum sentence”—a belief at odds with the 360-month sentence he ultimately received. Pro Se Resp. at
3. 2 The deficiency in this argument is that Mr. Sauce do-Avalos’ alleged belief was clearly refuted at the plea h earing, during which the distri ct court explained to him, with the assistance of an in terpreter, that the statutor y sentencing range was 10 years to life, see Dist. Ct. Doc. 280, at 16, 17, and th at the court was fre e to sentence him unconstrained by any recommendations from the parties, see id. at 10. He now contends, in conjunction with a request to supplement/correct the appellate record,

2 This response is titled “Motion to Supplement; Settle Record on Appeal.”8 that when the court asked him specifica lly whether he understood the potential sentencing range, he did not just answer “Yes,” as the tr anscript reflects, id. at 17, but went on to add: “but my lawyer has assure d me that I would be sentenced to no more than 10 years,” Pro Se Resp. at 3. Even if supplemented with this unsubstantiated interpolation, Mr. Saucedo-Avalos’ cont ention regarding an erroneous sentencing expectation developed in disc ussions with counsel still w ould not render his plea and appeal waiver invalid. Given the district court’s explanation about the sentencing range and its authority to impose a sentence within that range unconstrained by the parties’ recommendations, Mr. Saucedo-Avalos can claim only that, when he pled guilty, “[c]ounsel may have estimated, and [he] may have expected, a sentence substantially less than th e [thirty] years imposed”—ci rcumstances this court has repeatedly held “do not invalidate a plea or render it involuntary,” Thomas v. Kerby , 44 F.3d 884, 886 (10th Cir. 1995); see also United States v. Silva , 430 F.3d 1096, 1099 (10th Cir. 2005) (c ollecting cases). The government’s motion is granted and the appeal is dismissed. Counsel’s motion to withdraw is granted. Mr. Saucedo-Avalos’ motion to supplement the record is denied. 3

Entered for the Court Per Curiam

3 We have considered the few supplem entations/corrections to the record offered in Mr. Saucedo’s response to the government’s motion to enforce, and (as above) they do not alter our anal ysis in any material way. We therefore deny as moot his request to supplement/ correct the record.