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 Thom as Truskoski, P.A., Las Cruces, New Mexico, for Defendant-Appellant. Robert C. Troyer, United States Attorney, Marissa R. Miller, As sistant United States Attorney, Denver, Colorad o, for Plaintiff-Appellee.

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

________________ _________________ PER CURIAM

.

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### August 29, 2018
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ This matter is before the cour t on the government’s motion to d ismiss defendant Giavanni Edward Miles’ s appeal because i t falls withi n the scope of the appeal waiver contained in his P lea Agreement. We grant the go vernment’s motion and dismiss the appeal. Miles pleaded guilty to two coun ts 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 imp risonment. In his Plea Agreement, Miles “ knowingly and voluntarily” waived his right to appeal “any matter in connecti on with this prosecution, conviction, or senten ce unless it meets one of the following criteria: (1) the sentence exceed s the maximum penalty provided in the st atute of conviction; (2) the sentence exce eds the applicable advisory guideline rang e; or (3) the government appeals the sentence [] imposed.” Mot . to Enforce, A ttach. A at 2. The Plea Agreement further provided: “If any of these three criter ia apply, the defendant may appeal on any grou nd that is properly av ailable in an appea l 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 Ci r. 2004) (en banc) (per curiam). In ev aluating a motion to enforce a waiver, we consider: “(1) whether the di sputed appeal falls within the scope of the waiver o f appellate rights; (2) whether the defendant3 knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a mis carriage of justice.” Id. at 1325. Miles first argues that his appeal waiver is unconscionable and contrary to public policy because it is one-s ided: he waived his right to appeal, but the government did not. Emphasizing our holding that “contract pri nciples govern plea agreements,” id. at 1324-25, he asserts that the non-mutual appeal waiver makes his Plea Agreement an unenfor ceable adhesion contract. We have not addressed this issue , but several other circuits ha ve rejected Miles’s proposition and si milar contentions. In United States v. Powers , 885 F.3d 728, 732-33 (D.C. Cir. 2018), the c ourt held that a plea agreem ent was not an unenforceable adhesion contract whe re it limited the defendant’ s, but not the government’s, appeal r ights. The court re asoned that “[a]n app eal waiver . . . gives the defendant an additional barg aining 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 in to it unknowingly, unintentional ly, or involuntarily.”
Id. (internal quotation marks omitted).
In United States v. Hare , 269 F.3d 859, 861-62 (7 th Cir. 2001), the court rejected a defendant’s challenge to his a ppeal waiver as lackin g consideration because the government had not als o waived its right to appeal. It held: The prosecutor dismissed two out of three counts and promised t o recommend a lower sentence if cer tain conditions were met. Tha t’s plenty of consideration for [the defenda nt’s] promises-and contract la w does not require consideration to be brok en down clause-by-clause, with each promise matched against a mutual and similar promise by the oth er side.4 Id. at 861 (internal quota tion marks omitted); see also United States v. Hammond , 742 F.3d 880, 883-84 (9th Cir. 2 014) (“[T]he idea behind a plea agreement is that each side waives certa in rights to obtain some benefit. But th ere are ample reasons that a defendant might enter a p lea agreement short of extingui shing the government’s right to appeal, i ncluding the possibility of a lo wer sentence and the dismissal of other charg es.” (citation omitted)). One circuit construes a defenda nt’s non-mutual appeal waiver a s implicitly waiving the government’s r ight 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 provi sion against appeals must also be enforced against the government, which must be he ld to have implicitly cast its lot with the district court, as the defendant explici tly did”). But the same court d eclined to extend
Guevara to a case where the government had explicitly preserved its ri ght 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-mutu al appeal waiver in that con text, reasoning: [T]o the extent that [the defe ndant] invites us to extend Guevara and now hold for the first time that the waiver of appeal rights must a lways be reciprocal in plea bargaining, re gardless of the parties’ desir e to negotiate otherwise, we decline to do so . It redounds to the benefit of both criminal defendants and the government to have flexibility in negotiatin g the terms of plea agreements, i ncluding whether the p arties will retain t heir respective rights to appeal the district court’s chosen sentence. . . . I t is far from clear that the government would have e lected to strike [the same] bar gain—under which [the defendant] received a substantial benefit, no matter the outcome of this appeal—without [his] expre ss agreement that the United States had preserved its right to appeal the district court’s sentencing d ecision. Because there is nothing unconsci onable or contrary to public p olicy in5 permitting a criminal defendant a nd the government to agree to terms where the defendant waives his appella te rights and the government do es not, we refuse to rewrite the parties’ ple a agreement in this case by s triking the provision that allows the govern ment to appeal [the defendant’s ] sentence . . . . Accordingly, because the ple a agreement explicitly pre served the government’s appellate rights, we reject [the] argument that th is 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 Mile s’s non-mutual appeal waiver. The government a greed to dismiss two of the fou r counts in the indictment, to give Miles full c redit for acceptance of respons ibility, and to recommend a sentence at the low end of the guidelines range. T hus, his appeal waiver is “supported by the overa ll consideration given for the plea.” Hare , 269 F.3d at 862. He does not contend that his waiver was unknowing. An d he fails to show that, due to the lack of mutualit y in the appeal waiver, his Pl ea Agreement is unconscionable, contrary to public policy, or an unenforceable adhesion contract. 1 Miles asserts, alterna tively, that he received ineffective assi stance 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 jus tice “where ineffective assistance of counsel in connecti on with the negotiation of the waiver renders the waiver invalid” (internal quotati on marks omitted)). But Miles does not develop this claim in response to the governme nt’s motion, stating it would be “futile” because “ineffective assistan ce is not apparent on the face of the reco rd.” Resp. at 4. Instead,

1 Miles’s cases—which address one-sided arbitration clauses in c ommercial take-it-or-leave-it form contra cts—do not inform our analysis.6 Miles asks this court to “dism iss his appeal without prejudice so he may pursue relief in the district court,” presumab ly on an ineffective-assistance claim. Id. We decline to do so. As Miles readily acknowledges, “a defenda nt must generally raise claims of ineff ective 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 a n appellate waiver based on ineffective as sistance of counsel.” Id. In his Plea Agreement, Miles preserved his right to pursue an ineffective-assistance claim i n a collateral proceeding. Thus, Miles may raise his claim in the district co urt, should he choose to, in such a collateral proceeding. We grant the government ’s motion to enforce Miles’s appeal waiv er and dismiss his appeal.