FILED
United States Court of Appeals
Tenth Circuit
March 31, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-8040
v. (D. Wyoming)
ESTEBAN PARRA, (D.C. No. 04-CR-219-CAB)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this court 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.
Defendant, Estaban Parra was charged in a one-count indictment with
possession with intent to distribute 100 kilograms or more of marijuana, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). Parra filed a motion to suppress
*
This order and judgment is not binding precedent except under the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.
evidence obtained during a road-side search of his vehicle. The district court
denied the motion and Parra thereafter entered into a plea agreement with the
Government, agreeing to plead guilty to the violation charged in the indictment.
Parra was resentenced 1 on April 25, 2007, to sixty months’ imprisonment,
followed by four years of supervised release. Parra filed a timely Notice of
Appeal and his counsel, Lori Brand, filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), moving to withdraw as counsel. For the reasons set forth
below, we agree with Ms. Brand that the record in this case provides no
nonfrivolous basis for an appeal, and we therefore grant counsel’s motion to
withdraw and dismiss this appeal.
On October 23, 2004, Parra was pulled over by Wyoming Highway Patrol
Trooper Benjamin Peech for failing to use his turn signal when changing lanes.
Peech questioned Parra about his travel plans and asked whether he was carrying
a commercial load in his rented truck. Parra denied that he was transporting a
commercial load. After Peech returned Parra’s documents, Parra consented to a
search of the truck. As Peech attempted to unlock the truck, Parra admitted that
he was carrying a commercial load of peppers. During their subsequent search of
1
Parra was originally sentenced on April 25, 2005, and he did not file a
direct appeal. He did, however, file a timely motion pursuant to 28 U.S.C.
§ 2255, alleging his trial counsel was constitutionally ineffective for failing to file
a notice of appeal. The district court granted the § 2255 motion, vacated Parra’s
sentence, resentenced him to the same sixty-month term of imprisonment, and
appointed new counsel. Parra’s new attorney filed the notice of appeal that led to
the matter currently before this court.
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the truck, officers discovered 53 bricks of marijuana weighing approximately 990
pounds (450 kilograms), including the packaging. The record does not indicate
how much the marijuana weighed without the packaging.
Parra was charged by indictment with possession with intent to distribute
100 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B). The district court denied his motion to suppress the evidence obtained
during the search of his vehicle. Parra then pleaded guilty pursuant to the terms
of an unconditional plea agreement. The district court accepted Parra’s guilty
plea after informing him of the constitutional rights and privileges he would
thereby waive and establishing the factual basis for the plea.
The United States Probation Office then prepared a presentence report
(“PSR”) which calculated Parra’s criminal history as Category II and his total
offense level as twenty-five. Parra did not make any objections to the PSR. The
district court sentenced him to a five-year mandatory minimum sentence. See 21
U.S.C. § 841(b)(1)(B). Parra’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), advising this court that Parra’s appeal is wholly
frivolous. Accordingly, counsel has also filed a motion to withdraw. Under
Anders, counsel may “request permission to withdraw where counsel
conscientiously examines a case and determines that any appeal would be wholly
frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).
Counsel is required to submit a brief to both the defendant and this court
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indicating any potential appealable issues. Id. The defendant may then submit
additional arguments. “The [c]ourt must then conduct a full examination of the
record to determine whether defendant’s claims are wholly frivolous. If the court
concludes after such an examination that the appeal is frivolous, it may grant
counsel’s motion to withdraw and may dismiss the appeal.” Id. (citation omitted).
Parra’s counsel filed her Anders brief on August 31, 2007. Parra has not
submitted any additional arguments. Our conclusions, therefore, are based on
counsel’s Anders brief and our own review of the record.
Parra’s guilty plea may be set aside on direct appeal if he did not enter into
it knowingly and voluntarily. See United States v. Asch, 207 F.3d 1238, 1242
(10th Cir. 2000). In her Anders brief, Parra’s counsel asserts there is no basis for
challenging Parra’s guilty plea. Having reviewed the record, we agree. During
the change of plea hearing, the district court carefully and extensively questioned
Parra about his plea and his understanding of its consequences. There is no basis
for an appellate claim that Parra’s plea was not entered knowingly and
voluntarily. Further, in the written plea agreement Parra did not preserve his
right to appeal the denial of his motion to suppress. Accordingly, he has waived
the right to raise all nonjurisdictional defenses on direct appeal and the denial of
his motion cannot form the basis of an appeal. See United States v. Davis, 900
F.2d 1524, 1525-26 (10th Cir. 1990).
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The only other possible basis for an appeal must relate to Parra’s sentence.
The PSR calculated an advisory guidelines range of sixty-three to seventy-eight
months’ imprisonment based on a Criminal History of II and an offense level of
twenty-five. The district court, however, sentenced Parra to a sixty-month
mandatory minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(B)(vii) which
dictates such a sentence for possession of more than 100 kilograms of marijuana.
Although the record does not indicate how much the marijuana weighed without
its packaging, Parra stipulated in the written plea agreement that he possessed
between 400 and 700 kilograms. Accordingly, we agree with counsel that there is
no nonfrivolous basis upon which Parra could challenge his sentence.
Our review of the record reveals no other claims arguable on their merits,
and we accordingly conclude that Parra’s appeal is wholly frivolous. Counsel’s
motion to withdraw is granted and this appeal is dismissed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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