United States of America v. Jenifer Adriana Lopez-Ramirez

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JENIFER ADRIANA LOPEZ-RAMIREZ,
Defendant - Appellant.
No. 20-1281
(D.C. No. 1:19-CR-00285-RM-1)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
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Before McHUGH, MORITZ, and CARSON, Circuit Judges.
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This matter is before the court on the government’s motion to enforce the
appeal waiver in Jenifer Adriana Lopez-Ramirez’s plea agreement. We grant the
government’s motion and dismiss the appeal.
Lopez-Ramirez pled guilty to two counts of bank robbery, in violation of
18 U.S.C. § 2113(a), and two counts of possession of a firearm during and in relation
to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court
sentenced her to five years’ concurrent imprisonment on the two bank-robbery counts
* This order and judgment is not binding precedent, except under the doctrines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
March 10, 2021
Christopher M. Wolpert
Clerk of Court
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and seven years’ consecutive imprisonment on each of the two § 924(c) counts for a
total of nineteen years.
Lopez-Ramirez seeks to challenge the district court’s acceptance of her plea
agreement and her sentence through this appeal. But she agreed to a broad waiver of
appellate rights in the following portion of her plea agreement:
“[T]he defendant knowingly and voluntarily waives the 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 on the bank robbery counts exceeds the advisory guideline
range that applies to a total offense level of 28; or (3) the government
appeals the sentence imposed.
Mot. to Enforce Appeal Waiver Attach. 1 at 2. The government has moved to
enforce the appeal waiver in the plea agreement under United States v. Hahn,
359 F.3d 1315, 1328 (10th Cir. 2004) (en banc) (per curiam).
Under Hahn, we consider “(1) whether the disputed appeal falls within the
scope of the waiver of appellate rights; (2) whether 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. The government asserts that all of the
Hahn conditions have been satisfied: (1) Lopez-Ramirez’s appeal is within the scope
of the appeal waiver because her sentence did not exceed the statutory maximum, her
sentence on the bank-robbery counts did not exceed the advisory guideline range
applicable to an offense level of 28, and the government did not appeal; (2) she
knowingly and voluntarily waived her appellate rights; and (3) enforcing the waiver
would not result in a miscarriage of justice.
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Lopez-Ramirez’s counsel filed a motion to withdraw and a response citing
Anders v. California, 386 U.S. 738, 744 (1967), that said he could identify no
non-frivolous argument to oppose the government’s motion. We gave
Lopez-Ramirez the opportunity to respond to her counsel’s submission. See id. She
did so, noting her belief that her plea agreement preserved her right to appeal based
on ineffective assistance of counsel. And she outlined the basis for her ineffective
assistance of counsel claim, which relates to her trial counsel’s conduct in connection
with the sentencing hearing and not to her trial counsel’s conduct in negotiating the
plea agreement. 1
Lopez-Ramirez misconstrues the appeal waiver in her plea agreement. She did
not preserve a right to pursue a direct appeal based on ineffective assistance of
counsel. But her plea agreement stated that her appeal waiver “does not prevent
[Lopez-Ramirez] from seeking relief otherwise available in a collateral attack” on the
grounds that she “was deprived of the effective assistance of counsel.” Mot. Attach.
1 at 3. This was proper. “Ineffective assistance of counsel claims should be brought
in collateral proceedings, not on direct appeal. Such claims brought on direct appeal
are presumptively dismissible, and virtually all will be dismissed.” United States v.
Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). To the extent
Lopez-Ramirez seeks to bring a claim of ineffective assistance of counsel, she should
do so in a collateral proceeding.
1 “[I]neffective assistance of counsel in connection with the negotiation of [an
appeal] waiver” can be grounds for refusing to enforce the appeal waiver. Hahn,
359 F.3d at 1327 (internal quotation marks omitted).
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Based on our independent review of the record, we conclude that the Hahn
conditions are satisfied in this case. We therefore grant the government’s motion and
dismiss the appeal. We do so, however, without prejudice to Lopez-Ramirez’s right
to pursue post-conviction relief on the grounds permitted in her plea agreement.
We grant Gregory Stevens’s motion to withdraw as counsel.
Entered for the Court
Per Curiam
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