U.S. v. Calderon (10th Cir. 2008)

Federal Circuits, 10th Cir. (February 28, 2008)

Docket number: 07-4270

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Permanent Link: http://vlex.com/vid/u-s-v-calderon-38304080
Id. vLex: VLEX-38304080

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U.S. Court of Appeals for the 10th Cir. - United States of America, Plaintiff-Appellee, v. Tommy Don Cockerham, Defendant-Appellant., 237 F.3d 1179 (10th Cir. 2001)

U.S. Court of Appeals for the 10th Cir. - United States of America, Plaintiff-Appellee, v. Alejandro Delacruz-Soto, Defendant-Appellant., 414 F.3d 1158 (10th Cir. 2005)

U.S. Court of Appeals for the 10th Cir. - United States of America, Plaintiff-Appellee, v. Marcus G. Hahn, Defendant-Appellant. National Association of Criminal Defense Lawyers, Amicus-Curiae., 359 F.3d 1315 (10th Cir. 2004)

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Text:

FILED

United States Court of Appeals

Tenth Circuit

February 28, 2008

UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker

Clerk of Court

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 07-4270

(D.C. No. 2:06-CR-00680-DB-2)

JOSE CALDERON, also known as (D. Utah)

Maestro Calderon and Enrique

Calderon,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRISCOE, EBEL, and LUCERO, Circuit Judges.

The government moves to enforce the plea agreement it entered into with

Jose Calderon. Mr. Calderon admits that he "can set forth no legal grounds to

oppose the motion to enforce the plea agreement." Response to Mot. to Enforce

Plea Agreement at 4. He therefore concedes the motion. After independently

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 This order and judgment is not binding precedent, except under the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.

applying the three-pronged analysis set forth in United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004), we conclude that the government's motion to enforce should be granted.

Mr. Calderon asks that if the motion to enforce is granted he be allowed to raise a claim of ineffective assistance of counsel in negotiating the plea in an appropriate proceeding. Typically, such claims should be brought in a motion to vacate, set aside, or correct sentence under 28U.S.C. § 2255. See United States v. Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005). Although, in his plea agreement, Mr. Calderon waived the right to challenge his sentence in a § 2255 proceeding, a claim of ineffective assistance of counsel concerning the negotiation of a plea agreement cannot be barred by the agreement's appeal waiver provision. See United States v. Cockerham, 237 F.3d 1179, 1184 (10th Cir. 2001). Accordingly, our dismissal of this appeal is without prejudice to Mr. Calderon's pursuing a claim of ineffective assistance of counsel in a § 2255 proceeding.

The government's motion to enforce the plea agreement is GRANTED, and the appeal is DISMISSED. The mandate shall issue forthwith.

ENTERED FOR THE COURT PER CURIAM -