F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 29 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 02-5207
(D.C. No. 02-CR-65-H)
FELIPE CORTEZ TAPIA, (N.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and LUCERO, Circuit Judges. **
Defendant-Appellant Felipe Cortez Tapia appeals following his conviction
for possession of firearms in furtherance of a drug trafficking crime in violation
of 18 U.S.C. §§ 924(c)(1)(A)(i) & (c)(1)(B)(i). Counsel for Mr. Tapia filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967) and moved for leave
to withdraw as counsel. Although Mr. Tapia was afforded 30 days within which
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
to raise any challenges to his conviction or his sentence, he failed to do so within
the time period provided. Our jurisdiction arises under 28 U.S.C. § 1291 and we
dismiss the appeal and grant counsel’s request to withdraw.
Mr. Tapia was charged with possession of methamphetamine with intent to
distribute (“Count I”), possession of firearms in furtherance of a drug trafficking
crime (“Count II”), and maintaining a place for the purpose of manufacturing,
distributing and using methamphetamine (“Count III”). I R. Doc. 11. Mr. Tapia
thereafter entered an unconditional guilty plea to Count II and was sentenced to a
term of imprisonment of 120 months followed by 60 months of supervised
release. The district court thereafter dismissed Counts I and III at the
government’s request.
In his Anders brief, counsel for Mr. Tapia states that after diligently
reviewing the case he could find “no issue which can arguably support an appeal.”
Aplt. Br. at 7. The certification of service indicates that Mr. Tapia was served
with a copy of the brief and motion to withdraw; he has not responded. See 10th
Cir. R. 46.4(B)(2). In Anders, the Supreme Court held that if appointed counsel
“finds his case to be wholly frivolous, after a conscientious examination of it, he
should so advise the court and request permission to withdraw.” 386 U.S. at 744.
Where counsel has filed an Anders brief, we must conduct a “full examination of
all the proceedings” to determine if the appeal is “wholly frivolous.” Id. If we
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concur in counsel’s evaluation of the case, we may grant the request to withdraw
and dismiss the appeal. Id.
After a thorough review of the record we conclude there are no meritorious
issues for appeal. As to Mr. Tapia’s conviction, we note at the outset that
because a defendant who pleads guilty waives all non-jurisdictional challenges to
his conviction, his “only avenue for challenging his conviction is to claim that he
did not voluntarily or intelligently enter his plea.” United States v. Wright, 43
F.3d 491, 494 (10th Cir. 1994) (citing Mabry v. Johnson, 467 U.S. 504, 508-09
(1984)). However, Mr. Tapia has not argued that his plea was involuntary or
unknowing, and nothing in the record suggests that it was. As to the validity of
his sentence, the record reveals that the sentence imposed was within the
applicable guideline range, that the guideline range was correctly determined, and
that the district court did not exceed the statutory maximum sentence for the
offense of conviction. In fact, Mr. Tapia received the lightest allowable sentence
given the applicable mandatory minimum.
Accordingly, we DISMISS the appeal and GRANT counsel’s request to
withdraw.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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