                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUL 13 1999
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,


           v.                                             No. 98-3345


 ISAIAS SOLIS, also known as Momia,              (D.C. No. 98-CR-40062-RDR)
                                                           (D. Kan.)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT       *




Before ANDERSON, KELLY and BRISCOE, Circuit Judges.


       After examining the briefs and 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 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       This order and judgment is not binding precedent, except under the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. 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.
       Isaias Solis appeals his sentence for possession with intent to distribute

approximately 222.5 grams of cocaine base. We exercise jurisdiction pursuant to

28 U.S.C. § 1291 and dismiss the appeal.

       Solis was indicted on seven drug-related counts. In exchange for the

government dismissing six of the seven counts, Solis pleaded guilty to one count

of possession with intent to distribute approximately 222.5 grams of cocaine base.

Prior to sentencing, Solis filed an objection to the presentence report claiming his

criminal history category had been improperly calculated. At the sentencing

hearing, the district court considered and rejected Solis’ objection and sentenced

him to 135 months’ imprisonment (a sentence at the low end of the guideline

range).

       The government contends Solis’ appeal should be summarily dismissed

because, as part of the plea agreement, Solis agreed to waive his right to appeal.

The written plea agreement signed by Solis and his attorney, and accepted by the

district court states in pertinent part:

       3.     Defendant freely, voluntarily, knowingly and intelligently
              waives any right to appeal or collaterally attack any matter in
              connection with this prosecution and sentence . . . .
              A.    The defendant is aware that 18 U.S.C. § 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 guideline range applicable to
                    the statute of conviction 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

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                   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.

Supp. Vol. I, Doc. 29, Plea Agreement.

      We agree with the government that the above-quoted language bars Solis

from challenging the district court’s calculation of his criminal history category.

It is beyond dispute that “[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); see United States v. Atterberry,

144 F.3d 1299, 1300-01 (10th Cir. 1998) (enforcing defendant’s waiver of

statutory right to appeal). Here, the record indicates, and Solis concedes, that he

knowingly and voluntarily entered into the written plea agreement, and, pursuant

to the language quoted above, waived his statutory right to appeal his sentence.

The only exception to that waiver was if the district court departed upward from

the applicable sentencing guideline range. Because the district court did not do

so, that narrow exception is inapplicable.

      The appeal is DISMISSED.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge


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