UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. SETH JAMES PALMER, Defendant - Appellant. No. 23-5073 (D.C. No. 4:21-CR -00549-GKF-1) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , EBEL , and ROSSMAN , Circuit Judges.

________________ _________________ Seth James Palmer pleaded guilty to assa ult with intent to commit murder in Indian country and to discharging a firearm in relation to a crime of violence. He received a 171-month sent ence. He appeals even though his plea agreement contained an appeal waiver . The government has moved to enforce the waiver. See United States v. Hahn , 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). Mr. Palmer’s attorney has responded, sa ying it would be frivolous to oppose the government’s motion and, for that reason, moving to withdraw. See Anders v. California , 386 U.S. 738, 744 (1967). We invite d Mr. Palmer to respond himself, but

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 5, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-5073 Document: 010110978918 Date Filed: 01/05/2024 Page: 12 he has not done so. Our duty in these ci rcumstances is to ex amine the record and decide whether opposing the government’s motion would indeed be frivolous. See id. We think it would. We will enforce an appeal waiver if (1) the appeal falls within the waiver’s scope, (2) the defendant knowi ngly and voluntarily waived the right to appeal, and (3) enforcing the waiver will not re sult in a miscarriage of justice. See Hahn , 359 F.3d at 1325. Scope of the waiver. Mr. Palmer waived “the ri ght to directly appeal the conviction and sentence” unless his sentence exceeded the statutory maximum. Mot. to Enforce, Attach. 1 at 3. He faced a maximum of 20 years on the assault count and a maximum of life on the discharging-a-fir earm count. His sentence on each count fell below the statutory maximu m, so this appeal falls within the scope of his waiver. Knowing and voluntary waiver. To determine if a waiver was knowing and voluntary, we typically focus on two s ources—the plea agreement and the plea colloquy. See United States v. Edgar , 348 F.3d 867, 872 ( 10th Cir. 2003). The plea agreement contains strong ev idence that Mr. Palmer waived his appellate rights knowingly and vo luntarily. It describes th e appeal waiver in plain language. And Mr. Palmer asserted in the agreement that his a ttorney had explained his appellate rights, that he understood those rights, and that he knowingly and voluntarily waived them. During the plea colloquy, however, the district court failed to inform Mr. Palmer of “the terms of any plea- agreement provision waiving the right to Appellate Case: 23-5073 Document: 010110978918 Date Filed: 01/05/2024 Page: 23 appeal.” 1 Fed. R. Crim. P. 11(b)(1)(N). That failure was error. See Edgar , 348 F.3d
at 871. Even with the faulty plea colloquy, howe ver, the record l eaves no room for Mr. Palmer to argue that his waiver was invalid. The plea agreement itself all but forecloses such an argument. And nothing in the record suggests that, despite the language in the plea agreement, Mr. Palme r’s waiver was unknowing or involuntary. Indeed, under similar circumstances, we have held that a defendant’s appeal waiver was knowing and voluntary. See id. at 872–73. Miscarriage of justice. Enforcing an appeal waiver will result in a miscarriage of justice if (1) the district court reli ed on an impermissible sentencing factor; (2) ineffective as sistance of counsel in negotiati ng the waiver makes it invalid; (3) the sentence exceed s the statutory maximum; or (4) the waiver is otherwise unlawful, seriously affecting the fairness , integrity, or public reputation of the proceedings. See Hahn , 359 F.3d at 1327. According to his attorney , Mr. Palmer believes he received ineffective assistance from his plea counsel. But “a de fendant must generally raise claims of ineffective assistance of c ounsel in a collateral proceedi ng, not on direct review. This rule applies even wher e a defendant seeks to inva lidate an appellate waiver

1 Although the district court failed to discuss the waiv er’s terms with Mr. Palmer at the plea hearing, the gove rnment noted when summarizing the plea agreement that it contained “appellate and postconviction waiv ers.” Mot. to Enforce, Attach. 2 at 9. Mr. Palmer then said th at the government’s su mmary was consistent with his understanding of the agreement. Appellate Case: 23-5073 Document: 010110978918 Date Filed: 01/05/2024 Page: 34 based on ineffective assi stance of counsel.” United States v. Porter , 405 F.3d 1136, 1144 (10th Cir. 2005) (citation omitted). We see no reason to depart from that general rule here. Nor do we see anything in the record otherw ise suggesting that enforcing the appeal waiver will re sult in a miscarriage of justice.
* * * We agree with Mr. Palmer’s attorney that opposing the government’s motion to enforce would be frivolous. We therefor e grant his motion to withdraw. We also grant the government’s motion to enforce the appeal waiver. We dismiss this appeal.

Entered for the Court Per Curiam Appellate Case: 23-5073 Document: 010110978918 Date Filed: 01/05/2024 Page: 4