* This panel has determined unanimously 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 This order and judgment is not binding precedent, except under the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

June 11, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EUGENE KENNEY,

Defendant-Appellant.

No. 10-3050

(D.C. No. 2:09-CR-20022-KHV-4))

(D. Kan.)

ORDER AND JUDGMENT*

Before TACHA, EBEL, and O’BRIEN, Circuit Judges.

Eugene Kenney entered a guilty plea to one count of conspiracy to

distribute cocaine base and heroin. His plea agreement included a waiver of his

right to appeal any matter in connection with his sentence, unless the district

court departed upward from the advisory guideline range. Mr. Kenney was

sentenced to the mandatory minimum of 240 months’ imprisonment. Despite his

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appeal waiver, Mr. Kenney has now filed an appeal seeking to challenge his

sentence. The government has moved to enforce the appeal waiver in

Mr. Kenney’s plea agreement pursuant to our decision in United States v. Hahn,

359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). We grant the motion and

dismiss the appeal.

In response to the government’s motion to enforce the plea agreement,

Mr. Kenney concedes through counsel that the issue he seeks to present on appeal

is within the scope of his appeal waiver and that he knowingly and voluntarily

waived his appellate rights. He further concedes that, subject to his right to assert

an issue of ineffective assistance of counsel in a subsequent 28 U.S.C. § 2255

motion, enforcing the waiver would not result in a miscarriage of justice. Thus,

Mr. Kenney concedes that there are no valid grounds to object to the

government’s motion to enforce the appeal waiver. See Hahn, 359 F.3d at 1325. 

Mr. Kenney does request that he be allowed to reserve the right to file a

§ 2255 claim alleging ineffective assistance of counsel in connection with the

negotiation of the appeal waiver. Mr. Kenney correctly notes that such a claim

must ordinarily be raised in a collateral § 2255 proceeding, not on direct appeal. 

See United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005); see also

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

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agreement cannot be barred by the agreement itself.”) (alteration and quotation

omitted).

We have reviewed the record and Mr. Kenney’s response, and we agree that

the appeal falls within the scope of the appeal waiver, that Mr. Kenney knowingly

and voluntarily waived his appellate rights, and that enforcing the waiver would

not result in a miscarriage of justice.

Accordingly, we GRANT the motion to enforce the appeal waiver, without

prejudice to Mr. Kenney’s right to file a § 2255 motion asserting ineffective

assistance of counsel in connection with the negotiation of his appeal waiver, and

we DISMISS the appeal. Counsel’s motion to withdraw is GRANTED.

ENTERED FOR THE COURT

PER CURIAM

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