FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 14, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 18-3170 (D.C. No. 5:17-CR-40041-DDC-1) RYAN J. SINGLETON, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, Chief Judge, BACHARACH and MORITZ, Circuit Judges. _________________________________

Following his acceptance of a plea agreement that included a waiver of his

right to appeal, Ryan J. Singleton pleaded guilty to possession of child pornography,

in violation of 18 U.S.C. § 2252(a)(4)(B). Despite his waiver, he filed an appeal.

The government has moved to enforce Singleton’s appeal waiver. See United States

v. Hahn, 359 F.3d 1315, 1328 (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

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. the defendant knowingly and voluntarily waived his appellate rights; and (3) whether

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

Singleton’s plea agreement includes the following waiver of his appellate and

collateral-attack rights:

The defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, his conviction, or the components of the sentence to be imposed herein, including the length and conditions of supervised release, as well as any sentence imposed upon a revocation of supervised release. The defendant is aware that 18 U.S.C. § 3742 affords him the right to appeal the conviction and sentence imposed. The defendant also waives any right to challenge his sentence, or the manner in which it was determined, or otherwise attempt to modify or change his sentence, in any collateral attack, including, but not limited to, a motion brought under 28 U.S.C. § 2255 (except as limited by United States v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)), or a motion brought under Federal Rule of Civil Procedure 60(b). In other words, the defendant waives the right to appeal the sentence imposed in this case, except to the extent, if any, the Court departs or varies upwards from the sentencing Guideline range that the Court determines to be applicable. However, if the United States exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), the defendant is released from this waiver and may appeal the sentence received, as authorized by 18 U.S.C. § 3742(a). Notwithstanding the forgoing waivers, the parties understand that the defendant in no way waives any subsequent claims with regards to ineffective assistance of counsel or prosecutorial misconduct. Mot. to Enforce, Attach. C (Plea Agmt.) at 7-8.

In responding to the government’s motion, Singleton indicates that he wishes

to raise two issues on appeal: (1) that the district court misinterpreted some facts in

determining his sentence, and (2) that his counsel in district court was ineffective.

But Singleton concedes that his first appeal issue falls within the scope of his appeal

2 waiver because his 120-month sentence fell within the applicable sentencing range

calculated by the district court. See id., Attach. B (Sent. Tr.) at 33-34.

As to his second issue, Singleton notes, correctly, that he preserved in his plea

agreement his right to raise claims of ineffective assistance of counsel. He

acknowledges, however, that “a defendant generally must raise claims of ineffective

assistance of counsel in a collateral proceeding, not on direct review” and that “[t]his

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). In conclusion, Singleton states that he

objects to any affirmative finding that his plea or his waiver was knowing and voluntary. However, he does not object to a finding that he cannot show on the present record that his plea or his waiver was not knowing or voluntary, and he does not object to a dismissal of his direct appeal on the government’s motion without prejudice to him filing a 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel. Resp. at 3.

Our independent review confirms that Singleton’s proposed issues for appeal

fall within the scope of his waiver or raise a claim of ineffective assistance of counsel

that he may not pursue on direct appeal, see United States v. Edgar, 348 F.3d 867, 869 (10th Cir. 2003) (stating rule, with “rare exception” not applicable here, that

ineffective-assistance claims must be brought in a collateral proceeding). The plea

agreement clearly sets forth the appeal waiver and states that it was knowing and

voluntary, and the district court discussed the waiver and confirmed Singleton’s

understanding of it during his change-of-plea hearing. Moreover, there is no

3 evidence in the present record contradicting Singleton’s knowing and voluntary

acceptance of the waiver. Finally, there is also no indication in the present record

that enforcing the waiver would result in a miscarriage of justice as defined in Hahn,

359 F.3d at 1327.

The motion to enforce is granted and this appeal is dismissed.

Entered for the Court Per Curiam

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