PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

GIAVANNI EDWARD MILES, 

a/k/a No Lack, 

 Defendant - Appellant. 

No. 18-1172 

_________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:17-CR-00339-PAB-2)

_________________________________ 

Submitted on the briefs:*

Ryan Thomas Truskoski, Ryan Thomas Truskoski, P.A., Las Cruces, New Mexico, for 

Defendant-Appellant. 

Robert C. Troyer, United States Attorney, Marissa R. Miller, Assistant United States 

Attorney, Denver, Colorado, for Plaintiff-Appellee. 

_________________________________ 

Before HOLMES, O’BRIEN, and BACHARACH, Circuit Judges. 

_________________________________ 

PER CURIAM. 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 29, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

_________________________________ 

This matter is before the court on the government’s motion to dismiss 

defendant Giavanni Edward Miles’s appeal because it falls within the scope of the 

appeal waiver contained in his Plea Agreement. We grant the government’s motion 

and dismiss the appeal. 

Miles pleaded guilty to two counts of theft of firearms from a federal firearms 

licensee, in violation of 18 U.S.C. § 922(u). He was sentenced to two concurrent 

70-month terms of imprisonment. In his Plea Agreement, Miles “knowingly and 

voluntarily” waived his right to appeal “any matter in connection with this 

prosecution, conviction, or sentence unless it meets one of the following criteria: 

(1) the sentence exceeds the maximum penalty provided in the statute of conviction; 

(2) the sentence exceeds the applicable advisory guideline range; or (3) the 

government appeals the sentence[] imposed.” Mot. to Enforce, Attach. A at 2. The 

Plea Agreement further provided: “If any of these three criteria apply, the defendant 

may appeal on any ground that is properly available in an appeal that follows a guilty 

plea.” Id.

The government filed a motion to enforce Miles’s appeal waiver under United 

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

a motion to enforce a waiver, we consider: “(1) whether the disputed appeal falls 

within the scope of the waiver of appellate rights; (2) whether the defendant 
3 

knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the 

waiver would result in a miscarriage of justice.” Id. at 1325. 

Miles first argues that his appeal waiver is unconscionable and contrary to 

public policy because it is one-sided: he waived his right to appeal, but the 

government did not. Emphasizing our holding that “contract principles govern plea 

agreements,” id. at 1324-25, he asserts that the non-mutual appeal waiver makes his 

Plea Agreement an unenforceable adhesion contract. 

We have not addressed this issue, but several other circuits have rejected 

Miles’s proposition and similar contentions. In United States v. Powers, 885 F.3d 

728, 732-33 (D.C. Cir. 2018), the court held that a plea agreement was not an 

unenforceable adhesion contract where it limited the defendant’s, but not the 

government’s, appeal rights. The court reasoned that “[a]n appeal waiver . . . gives 

the defendant an additional bargaining chip to use in securing a plea agreement with 

the government,” and it held that a bargained-for appeal waiver is enforceable 

“unless the defendant enters into it unknowingly, unintentionally, or involuntarily.” 

Id. (internal quotation marks omitted). 

In United States v. Hare, 269 F.3d 859, 861-62 (7th Cir. 2001), the court 

rejected a defendant’s challenge to his appeal waiver as lacking consideration 

because the government had not also waived its right to appeal. It held: 

The prosecutor dismissed two out of three counts and promised to 

recommend a lower sentence if certain conditions were met. That’s plenty 

of consideration for [the defendant’s] promises-and contract law does not 

require consideration to be broken down clause-by-clause, with each 

promise matched against a mutual and similar promise by the other side. 
4 

Id. at 861 (internal quotation marks omitted); see also United States v. Hammond, 

742 F.3d 880, 883-84 (9th Cir. 2014) (“[T]he idea behind a plea agreement is that 

each side waives certain rights to obtain some benefit. But there are ample reasons 

that a defendant might enter a plea agreement short of extinguishing the 

government’s right to appeal, including the possibility of a lower sentence and the 

dismissal of other charges.” (citation omitted)). 

 One circuit construes a defendant’s non-mutual appeal waiver as implicitly 

waiving the government’s right to appeal as well. See United States v. Guevara, 

941 F.2d 1299, 1299-1300 (4th Cir. 1991) (concluding that to do otherwise was “too 

one-sided” and “that such a provision against appeals must also be enforced against 

the government, which must be held to have implicitly cast its lot with the district 

court, as the defendant explicitly did”). But the same court declined to extend 

Guevara to a case where the government had explicitly preserved its right to appeal 

in the plea agreement. See United States v. Zuk, 874 F.3d 398, 406-07 (4th Cir. 

2017). The court upheld a non-mutual appeal waiver in that context, reasoning: 

[T]o the extent that [the defendant] invites us to extend Guevara and now 

hold for the first time that the waiver of appeal rights must always be 

reciprocal in plea bargaining, regardless of the parties’ desire to negotiate 

otherwise, we decline to do so. It redounds to the benefit of both criminal 

defendants and the government to have flexibility in negotiating the terms 

of plea agreements, including whether the parties will retain their respective 

rights to appeal the district court’s chosen sentence. . . . It is far from clear 

that the government would have elected to strike [the same] bargain—under 

which [the defendant] received a substantial benefit, no matter the outcome 

of this appeal—without [his] express agreement that the United States had 

preserved its right to appeal the district court’s sentencing decision. 

Because there is nothing unconscionable or contrary to public policy in 
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permitting a criminal defendant and the government to agree to terms where 

the defendant waives his appellate rights and the government does not, we 

refuse to rewrite the parties’ plea agreement in this case by striking the 

provision that allows the government to appeal [the defendant’s] sentence 

. . . . Accordingly, because the plea agreement explicitly preserved the 

government’s appellate rights, we reject [the] argument that this appeal is 

barred by an implied appellate waiver. 

Id. at 407-08 (citation and internal quotation marks omitted). 

We agree with our sibling circuits’ reasoning in upholding Miles’s non-mutual 

appeal waiver. The government agreed to dismiss two of the four counts in the 

indictment, to give Miles full credit for acceptance of responsibility, and to 

recommend a sentence at the low end of the guidelines range. Thus, his appeal 

waiver is “supported by the overall consideration given for the plea.” Hare, 269 F.3d 

at 862. He does not contend that his waiver was unknowing. And he fails to show 

that, due to the lack of mutuality in the appeal waiver, his Plea Agreement is 

unconscionable, contrary to public policy, or an unenforceable adhesion contract.1

 

Miles asserts, alternatively, that he received ineffective assistance of counsel 

in the negotiation of his appeal waiver. See Hahn, 359 F.3d at 1327 (holding 

enforcement of an appeal waiver results in a miscarriage of justice “where ineffective 

assistance of counsel in connection with the negotiation of the waiver renders the 

waiver invalid” (internal quotation marks omitted)). But Miles does not develop this 

claim in response to the government’s motion, stating it would be “futile” because 

“ineffective assistance is not apparent on the face of the record.” Resp. at 4. Instead, 

 1

 Miles’s cases—which address one-sided arbitration clauses in commercial 

take-it-or-leave-it form contracts—do not inform our analysis. 
6 

Miles asks this court to “dismiss his appeal without prejudice so he may pursue relief 

in the district court,” presumably on an ineffective-assistance claim. Id. 

We decline to do so. As Miles readily acknowledges, “a defendant must 

generally raise claims of ineffective assistance of counsel in a collateral proceeding, 

not on direct review.” United States v. Porter, 405 F.3d 1136, 1144 (10th Cir. 2005). 

“This rule applies even where a defendant seeks to invalidate an appellate waiver 

based on ineffective assistance of counsel.” Id. In his Plea Agreement, Miles 

preserved his right to pursue an ineffective-assistance claim in a collateral 

proceeding. Thus, Miles may raise his claim in the district court, should he choose 

to, in such a collateral proceeding. 

We grant the government’s motion to enforce Miles’s appeal waiver and 

dismiss his appeal.