UNITED STATES CO URT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ALONSO ANILES-MARQUEZ, Defendant-Appellant. No. 12-2186 (D.C. No. 1:11-CR-01691-WJ-1) (D. N.M.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, LUCERO and GORSUCH , Circuit Judges.

This matter is before the court on the government’s motion to enforce the appeal waiver contained in defendant Al onso Aniles-Marquez’s plea agreement. We grant the government’s moti on and dismiss the appeal. Mr. Aniles-Marquez pled guilty pursuant to a plea agreement to one count of possession with intent to distribute more than five grams of methamphetamine, in

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### April 29, 2013

Elisabeth A. Shumaker Clerk of Court- 2 - violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) , and one count of possession with intent

to distribute a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Mr. Aniles-Marquez stipulated in his plea ag reement that “[a]t least 35 grams but less than 50 grams of methamphetamine (actual) are attributable to [him].” Mot. to Enforce, Attach. # 1 (Plea Agreement), at 5. He also acknowledged in the plea agreement that the maximum term of imprisonmen t the court could impose was “a period of not less than 5 year s nor more than 40 years.” Id. at 2. The district court accepted his guilty plea and, after calculat ing his sentencing guideline range to be 87 to 108 months, sentenced him to 92 m onths’ incarceration on each count, to run concurrently. As part of his plea agreement, Mr. Aniles-Marquez “knowingly waive[d] the right to appeal [his] conviction(s) and a ny sentence, including an y fine, at or under the maximum statutory penalty authorized by law.” Id. at 10. He nonetheless filed an appeal, which prompted the government to file the current motion to dismiss in

accordance with United States v. Hahn , 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam). Mr. Aniles-Mar quez’s court-appointed attorney filed a response to the government’s motion stating that “after a conscientious examination of the record,” he concluded “that only fri volous grounds exist by which to oppose the government’s motion,” and he asked to withdraw from representation. Resp. to Mot. to Enforce at 1; see also Anders v. California , 386 U.S. 738 (1967). In light of- 3 - counsel’s response, we invite d Mr. Aniles-Marquez to file a pro se response, which

he did. Mr. Aniles-Marquez lists eleven errors in his response that he contends warrant allowing him to proceed with his appeal. Most of th em involve alleged sentencing errors, one involve s an alleged error in the government’s statement of facts supporting his guilty pl ea, and another involves hi s trial counsel’s alleged ineffective assistance in not advising him of the immigration c onsequences of his plea. We will enforce an appeal waiver as long as three el ements are met: (1) “the disputed appeal falls within the scope of the appellate waiver”; (2) “the defendant knowingly and voluntarily waived his appell ate rights”; and (3) “enforcing the waiver will [not] result in a miscarriage of justice.” Hahn , 359 F.3d at 1325, 1327. The first

factor is satisfied because none of the issues Mr. Aniles- Marquez raises falls outside the scope of his appeal waiver.

The second factor is also satisfied. Mr. Aniles-Marquez does not argue that his waiver of appellate ri ghts was not knowing and volunt ary, an element on which he bears the burden of proof, see United States v. Salas-Garcia , 698 F.3d 1242, 1254 (10th Cir. 2012). Further, our independent review of the plea agreement and the Rule 11 colloquy demonstrates that hi s waiver was knowing and voluntary. See id. (“[T]he court examines whether the language of the plea agreemen t states that the- 4 - defendant entered the agreement knowingly and voluntarily, and whether there was an adequate Federal Rule of Cr iminal Procedure 11 colloquy.”). Although Mr. Aniles-Marquez alleges that he was not adequately advised of the immigration consequences of his guilty plea, the plea agreem ent itself clearly explains those consequences: [P]leading guilty may have consequen ces with respect to Defendant’s immigration status if Defendant is not a citizen of the United States. Under federal law, a br oad range of crimes are removable offenses, including the offenses to which Defe ndant is pleading guilty. Indeed, because Defendant is pleading guilty to violations of 21 U.S.C. §§ [841](a)(1), (b)(1)(B) and (b )(1)(C), removal is presumptively mandatory. . . . Defendant neverthele ss affirms that Defendant wants to plead guilty regardless of any immigration consequences that Defendant’s plea may entail, even if the consequence is Defendant’s automatic removal from the United States. Plea Agreement at 9-10. And the court di scussed the immigrati on consequences of his plea with him as part of the Rule 11 colloquy: THE COURT: And as part of your agreement, you’re agreeing to be deported following your service of incarceration. You’re giving up any hearing before you are deporte d. Do you understand that? THE DEFENDANT: Yes, ma’am.

THE COURT: And with that deportation and this criminal conviction, it will be impossible fo r you to enter the United States lawfully in the future. Do you understand that? THE DEFENDANT: Yes, ma’am. Mot. to Enforce, Attach. 2 (Plea Hrg. Tr.) , at 9. Accordingly, we see no basis for concluding that Mr. Aniles-Marquez did not waive his appellate rights knowingly and voluntarily.- 5 - “Under the final factor of Hahn , the court will enforce an appellate waiver

unless it finds that the enforcement of th e waiver would constit ute a miscarriage of justice.” Salas-Garcia , 698 F.3d at 1255 (internal quotation marks omitted).

Enforcement of the waiver wi ll constitute a miscarriage of justice only if one of the following circumstances is pres ent: (1) “the district cour t relied on an impermissible factor such as race”; (2) th e “ineffective assistance of c ounsel in connection with the negotiation of the waiver renders the waiver invalid”; (3) “the sentence exceeds the statutory minimum”; or (4) “the waiver is otherwise unlawful.” Id. (internal quotation marks omitted). None of th ese circumstances are present here. Mr. Aniles-Marquez does contend that his tr ial counsel was ineffective in advising him of the immigration cons equences of his guilty plea, but even if this claim somehow relates to the negotiation of the appeal waiver, Mr. Aniles-Marquez must wait to raise it in a separate pr oceeding under 28 U.S.C. § 2255. See United States v.

Novosel , 481 F.3d 1288, 1295 (10th Cir. 2007) (per curiam). Accordingly, we grant the government’s motion to enforce the appeal waiver and dismiss the appeal. Defe nse counsel’s request to withdraw is denied without prejudice to renewal in a proper motion that comports with 10th Cir. R. 46.4. Mr. Aniles-Marquez’s request for appointme nt of counsel is denied as moot.

Entered for the Court Per Curiam