F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 25 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 01-2139
v. (D.C. No. CR-00-1076-LH)
(D. New Mexico)
ARMANDO MARTINEZ-ANAYA,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and HARTZ , Circuit Judges. **
Armando Martinez Anaya pleaded guilty to conspiring to possess more than
five grams of cocaine with the intent to distribute (a violation of 21 U.S.C. § 846)
and to possessing more than five grams of cocaine with the intent to distribute (a
*
This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. 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.
**
After examining the briefs and the appellate record, 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 submitted without oral argument.
violation of 21 U.S.C. § 841(b)(1)(A)). The plea agreement between the
government and Mr. Martinez-Anaya contains the following provision:
WAIVER OF APPEAL RIGHTS
The defendant is aware that Title 18, United States Code,
§ 3742 affords a defendant the right to appeal the sentence
imposed. Acknowledging that, the defendant knowingly
waives the right to appeal any sentence within the
applicable guideline range as determined by the court after
resolution of any objections by either party to the
presentence report to be prepared in this case, and the
defendant specifically agrees not to appeal the
determination of the court in resolving any contested
sentencing factor. In other words, the defendant waives
the right to appeal the sentence imposed in this case,
except to the extent, if any, that the court may depart
upwards from the applicable sentencing guideline range as
determined by the court.
Rec. vol. I, doc. 51, at 4-5 (Plea Agreement filed Dec. 4, 2000). Following its
acceptance of his guilty plea, the district court sentenced Mr. Martinez-Anaya to
concurrent terms of 120 months’ imprisonment on each conviction, followed by
five years’ supervised release.
Despite of the waiver-of-appeal provision in the plea agreement, Mr.
Martinez-Anaya filed a notice of appeal. His appellate counsel subsequently filed
a brief pursuant to Anders v. California , 386 U.S. 738 (1967), advising the court
that in light of the plea agreement provision, Mr. Martinez-Anaya’s appeal is
frivolous. Mr. Martinez-Anaya’s counsel has also filed a motion to withdraw. As
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required, see id. at 744, copies of the Anders brief and the motion to withdraw
have been served upon Mr. Martinez-Anaya .
“A defendant’s knowing and voluntary waiver of the statutory right to
appeal his sentence is generally enforceable.” United States v. Hernandez , 134
F.3d 1435, 1437 (10th Cir. 1998). There are exceptions to this general rule. For
example, in spite of a waiver provision, a defendant may still appeal his sentence
if the district court relied on an impermissible factor such as race, if ineffective
assistance of counsel in connection with the negotiation of the waiver rendered the
waiver invalid, if the sentence exceeds the statutory maximum, or if the waiver is
otherwise unlawful. See United States v. Cockerham , 237 F.3d 1179, 1182 (10th
Cir. 2001).
However, none of those exceptions applies here. Mr. Martinez-Anaya does
not argue that his sentence was based on consideration of an impermissible factor,
that he received ineffective assistance of counsel in the negotiation of the plea
agreement, or that his sentence was otherwise unlawful. Additionally, the record
indicates that Mr. Martinez-Anaya entered into the plea agreement knowingly and
voluntarily.
Mr. Martinez-Anaya now contends that the district court erred in applying
the statute (which requires a minimum sentence) and in calculating his criminal
history. See Response to Motion to Dismiss for Lack of Jurisdiction at 2 (filed
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June 4, 2001). However, we discern no error in the application of the statutory
minimum. The court found that the offense involved 22.75 kilograms of cocaine,
see Rec. vol II, at 3 (Presentence Report, filed July 30, 2002), and therefore was
bound to impose a sentence of no less than ten years. See 21 U.S.C. §
841(b)(1)(A)(ii); Rec. vol. II at 8 (noting that “[t]he term of imprisonment . . . is
ten (10) years’ minimum . . .[pursuant to] 21 U.S.C. § 841(b)(1)(A)). Moreover,
because the sentence was within the Guideline range of 120 to 121 months, see id.
at 8, ¶ 40, the waiver-of-appeal provision of the plea agreement precludes Mr.
Martinez-Anaya from challenging the calculation of his criminal history.
Accordingly, we GRANT the motion to withdraw filed by Mr. Martinez-
Anaya’s counsel and we DISMISS this appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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