United States v. Anderson , 28 F. App'x 795 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 5 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-6338
(D.C. No. 98-CR-206-T)
DERRION WONE ANDERSON, (W.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY ,
Senior Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Defendant Derrion Wone Anderson pled guilty to count one of
a multi-count indictment, conspiracy to distribute cocaine base in violation
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
of 21 U.S.C. §§ 841(a)(1) and 846. At sentencing, the government agreed that
under Apprendi v. New Jersey , 530 U.S. 466 (2000), the statutory maximum
sentence and the limit of the sentencing guideline range was 240 months. See
21 U.S.C. §§ 841(b)(1)(C) (providing that the maximum penalty available for a
cocaine conspiracy that does not involve a specified amount of cocaine is twenty
years (240 months)). The district court applied a downward departure based on
the defendant’s substantial assistance, see USSG § 5K1.1, and sentenced
defendant to 120 months’ imprisonment.
On appeal, counsel for defendant has filed a brief pursuant to Anders v.
California , 386 U.S. 738 (1967), indicating her belief that the record contains no
meritorious issues for appeal. Defense counsel has also filed a motion requesting
leave to withdraw as counsel, stating her belief that the issues raised on appeal
are frivolous. As required, a copy of counsel’s Anders brief and motion to
withdraw were provided to defendant, see id . at 744, and he filed a pro se brief,
raising, without analysis or discussion, three issues: (1) the sentence imposed
exceeded the authorized statutory maximum; (2) the trial court’s “application of
the 21 U.S.C. § 841(b)(1)(C) exceeded the 4.9 grams authorized by statute;”
and (3) the trial court lacked jurisdiction to impose a sentence under § 841.
Aplt. Objection at 2. Defendant later filed an untimely reply brief elaborating on
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two of these issues and raising for the first time a new issue, that 21 U.S.C. §
841(b) is unconstitutional.
Pursuant to our duty under Anders , 386 U.S. at 744, we have conducted an
independent review of defendant’s sentence and we agree that the appeal is
frivolous. The United States correctly argues that defendant waived his statutory
right to appeal by knowingly and voluntarily waiving that right in his plea
agreement. The plea agreement provides in relevant part that defendant waives
any right to appeal so long as the sentence imposed is within or below the
applicable guideline range. Defendant’s waiver of his right to appeal does not
apply to appeals or challenges based on changes in the law reflected in this
Circuit or Supreme Court cases decided after the date of the plea agreement which
are held by this Circuit or the Supreme Court to have retroactive effect.
[A]greements waiving the right to appeal are subject to certain
exceptions, including where the agreement was involuntary or
unknowing, where the court relied on an impermissible factor such
as race, or where the agreement is otherwise unlawful. In addition,
a waiver may not be used to preclude appellate review of a sentence
that exceeds the statutory maximum or to deny review of a claim that
the agreement was entered into with ineffective assistance of
counsel.
United States v. Cockerham , 237 F.3d 1179, 1182 (10th Cir.), petition for
cert. filed (U.S. July 23, 2001) (No. 01-5462) (quotation and citations omitted).
Our review of the record reveals that defendant entered into the plea
agreement waiving his appellate rights knowingly and voluntarily, and, indeed,
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defendant does not claim that he did not know the terms of his plea agreement or
that his plea was unknowing. The sentence imposed was within the applicable
guideline range and the district court did not exceed the statutory maximum
sentence. Further, none of the issues raised by defendant are based on changes
in the law made retroactive by this court or the Supreme Court after the date of
the plea agreement.
Accordingly, the appeal waiver is valid and this appeal falls within its plain
language. Therefore, we GRANT counsel’s request to withdraw and DISMISS
the appeal.
Entered for the Court
Deanell Reece Tacha
Chief Judge
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