UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. CHANTZ GERMAINE PATTERSON, a/k/a Chantz Terrance Patterson, a/k/a Chank, Defendant-Appellant. No. 12-5107 (D.C. No. 4:11-CR-00149-CVE-2) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, EBEL and MATHESON , Circuit Judges.

Chantz Germaine Patters on pleaded guilty to two counts of conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371, two counts of bank robbery with a dangerous weapon, in violation of 18 U.S.C. § 2113(a) & (d ), and one count of using, carrying, and brandi shing a firearm during and in relation to a crime of

* This panel has determined that oral ar gument 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 20, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Th e district court sentenced him to a total of 192 months in prison to be followed by three years’ supervised release. In addition, the district court entered a rest itution order in the amount of $4,336. By plea agreement, Mr. Patterson wa ived the right to appeal his conviction or sentence unless his sentence exceeded the statutory maximum. The statutory maximum sentence for the char ges of conspiracy to co mmit bank robbery was five years, for the charges of bank robbery with a dangerous weapon was twenty-five years, and for the firearm charge was life imprisonment. Notwithstanding the appeal waiver, Mr. Patterson f iled a notice of appeal. The government has moved to enforce the appeal waiver under United States v. Hahn , 359 F.3d 1315 (10th Cir. 2004) (en ba nc) (per curiam). In response, Mr. Patterson’s counsel filed a motion to withdraw and an Anders brief. See Anders v. California , 386 U.S. 738, 744 (1967) (authorizi ng counsel to request permission to withdraw where counsel conscientiously exam ines case and determines that appeal would be wholly frivolous). Counsel stat es that there are no nonfrivolous issues presented in the record. Nonetheless, under Anders , we have conducted an i ndependent review of the plea agreement, change of pl ea hearing transcript, senten cing hearing transcript, and motion to enforce. See id. After doing so, we conclude that the requirements for enforcing the plea waiver at this time have been satisfied: (1 ) this “appeal falls within the scope of the waiv er of appellate rights;” (2) Mr. Patterson “knowingly and- 3 - voluntarily waived his appellate rights;” and (3) “enforcing the waiver would [not] result in a miscarri age of justice.” Hahn , 359 F.3d at 1325. This court afforded Mr. Patterson an op portunity to file a pro se response to the motion to enforce, see Anders , 386 U.S. at 744, which he did. Mr. Patterson contends that his attorney provided ineffe ctive assistance of counsel in negotiating the guilty plea and in advising him concerning the plea. That claim should be raised in a collateral proceeding unde r 28 U.S.C. § 2255, rather th an on direct appeal, since the district court has not ha d an opportunity to devel op the factual record on the issue. See, e.g., United Stat es v. Ibarra-Coronel , 517 F.3d 1218, 1222 (10th Cir. 2008) (recognizing claim of ineffective assi stance of trial counsel usually must be raised in collateral proceeding); Hahn , 359 F.3d at 1327 & n. 13 (recognizing ineffective assistance of counsel as ex ception to enforcing appellate waiver, but reiterating longstanding rule that such cl aims are properly considered on collateral review). Mr. Patterson may properly bring an ineffective assistance of counsel claim concerning the negotiation of his appeal waiver in a collateral proceeding. We GRANT the government’s motion to enforce the plea agreement, GRANT counsel’s motion to withdraw , and DISMISS the appeal.

Entered for the Court Per Curiam