UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

JESUS JOSE ORNELAS-YANEZ, 

 Defendant - Appellant. 

No. 14-2186 

(D.C. No. 5:13-CR-00325-JB-1) 

(D. N.M.)

 

ORDER AND JUDGMENT*

 

Before TYMKOVICH, EBEL, and BACHARACH, Circuit Judges. 

 

 The government has moved to enforce the plea agreement it entered into with 

Jesus Jose Ornelas-Yanez. Mr. Ornelas-Yanez pleaded guilty pursuant to a written 

plea agreement to possession with intent to distribute 500 grams or more of 

methamphetamine. Under the terms of the plea agreement, he waived his right to 

appeal his “conviction(s) and any sentence, including any fine, at or under the 

maximum statutory penalty authorized by law.” Mot. to Enforce, Ex. 1, at 8, ¶ 13. 

 

* This panel has determined that oral argument 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is not binding precedent, except under the doctrines of law of the case, res judicata, 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 

July 10, 2015

Elisabeth A. Shumaker 

Clerk of Court

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Mr. Ornelas-Yanez acknowledged in the plea agreement that the maximum prison 

sentence the court could impose was “for a period of not less than 10 years nor more 

than life imprisonment.” Id. at 2, ¶ 4.a. The court accepted the plea agreement and 

sentenced Mr. Ornelas-Yanez to 121 months’ imprisonment, which was below the 

statutory maximum. Despite the appeal waiver in his plea agreement, 

Mr. Ornelas-Yanez filed an appeal. 

The government moved to enforce the appeal waiver pursuant to United States 

v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). Hahn requires 

enforcement of an appeal waiver if (1) “the disputed appeal falls within the scope of 

the waiver of appellate rights”; (2) the defendant “knowingly and voluntarily waived 

his appellate rights”; and (3) “enforcing the waiver would [not] result in a 

miscarriage of justice.” Id. at 1325. The exception for miscarriage of justice applies 

in only 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.” Id. at 1327. 

 In his counselled response to the government’s motion, Mr. Ornelas-Yanez 

argues that enforcement of the appeal waiver would result in a miscarriage of justice 

because his trial counsel provided ineffective assistance in the negotiation of the 

waiver. Specifically, he argues that, in light of the parties’ “vigorous dispute about 

sentencing issues,” “effective counsel would have reserved Mr. Ornelas’s right to an 

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appeal, rather than waive that right, which, if enforced, would preclude appellate 

review of the sentencing issues.” Resp. to Mot. to Enforce at 2. Mr. Ornelas-Yanez 

correctly notes that ineffective assistance in the negotiation of a plea agreement 

cannot, itself, be waived in the plea agreement. See United States v. Cockerham, 

237 F.3d 1179, 1184 (10th Cir. 2001) (“[A] claim of ineffective assistance of counsel 

in connection with the negotiation of a [plea] agreement cannot be barred by the 

agreement itself.” (second alteration in original) (internal quotation marks omitted)). 

 Nonetheless, “a defendant must generally raise claims of ineffective assistance 

of counsel in a collateral proceeding, not on direct review. This rule applies even 

where a defendant seeks to invalidate an appellate waiver based on ineffective 

assistance of counsel.” United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005) 

(citation omitted). This court will consider an ineffective-assistance-of-counsel 

claim on direct appeal only in “rare instances,” such as “where the record is 

sufficient, or where the claim simply does not merit further factual inquiry.” United 

States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993). Mr. Ornelas-Yanez recognizes 

this general principle, but argues that it would be “a far more efficient use of judicial 

resources to remand for the limited purpose of developing a factual record on the 

discrete and narrowly-circumscribed issue of ineffective assistance of counsel” than 

to require Mr. Ornelas-Yanez to bring a claim for ineffective assistance of counsel in 

a collateral proceeding. Resp. to Mot. to Enforce at 4-5. We see no reason to deviate 

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from our general rule in this instance, however. So Mr. Ornelas-Yanez cannot raise 

his claim of ineffective assistance of counsel on direct appeal. 

Mr. Ornelas-Yanez does not otherwise challenge the government’s motion to 

enforce. He neither argues that his appellate issues are outside the scope of the 

waiver nor that his waiver was not knowing and voluntary. We, therefore, need not 

address these issues. See Porter, 405 F.3d at 1143. 

The government’s Motion to Enforce Appellate Waiver in Plea Agreement is 

granted, and the appeal is dismissed. 

 Entered for the Court 

 Per Curiam 

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