                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 16 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                   No. 01-6264
                                                    (D.C. No. 01-CR-25-C)
    MARTIN LUNA-MARTINEZ,                             (W.D. Oklahoma)

                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before ANDERSON and BALDOCK , Circuit Judges, 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.




*
      This order and judgment is not binding precedent, except under the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.
       Defendant Martin Luna-Martinez pleaded guilty to one count of possession

with intent to distribute cocaine powder in violation of 21 U.S.C. § 841(a)(1).

The plea agreement states, in pertinent part:

       . . . defendant in exchange for the promises and concessions made by
       the United States in this plea agreement, knowingly and voluntarily
       waives his right to appeal or collaterally challenge:
               a.    Defendant’s guilty plea and any other aspect of
                     his conviction . . . .
               b.    Defendant’s sentence as imposed by the Court and the
                     manner in which the sentence is determined, provided
                     the sentence is within or below the applicable guideline
                     range determined by the Court to apply to this case, even
                     if the Court rejects one or more of the positions of the
                     United States or the defendant set forth in paragraph 7
                     concerning the application of the U.S. Sentencing
                     Guidelines . . . .

Record, Vol. I, Plea Agreement, at 4-5.

       The plea agreement further provides a maximum imprisonment term under

the plea of not less than five years and not more than forty years.   See id. at 2.

The district court determined defendant’s total offense level to be twenty-seven

with a criminal history category of one for a guideline range of seventy to eighty-

seven months of imprisonment. After review of the presentence report and

defendant’s objections to the report, the court sentenced defendant to seventy

months of imprisonment, four years of supervised release, and a special

assessment of $100.00.




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       On appeal, defendant argues he must be resentenced because: (1) the

district court’s finding that there was sufficient evidence to support an

enhancement for possession of a firearm under United States Sentencing

Guidelines § 2D1.1(b)(1) was clearly erroneous; and (2) the district court’s

finding that defendant did not meet the criteria of 18 U.S.C. § 3553(f) and

U.S.S.G. § 2D1.1(b)(1) was clearly erroneous. Defendant does not address the

waiver-of-appeal provision contained in the plea agreement in his opening brief,

and he did not file a reply brief.

       In its response brief, the United States correctly argues that defendant

knowingly and voluntarily waived his right to appeal by entering into the plea

agreement. Subject to certain limited exceptions, a defendant’s knowing and

voluntary waiver of the right to appeal is enforceable.     See United States v. Rubio ,

231 F.3d 709, 712 (10th Cir. 2000). Whether a defendant’s waiver was knowing

and voluntary is reviewed de novo.      See id . In the instant case, nothing in the

record suggests defendant’s decision to enter into the plea agreement was

unknowing or involuntary. In addition, defendant does not argue or even suggest

he unknowingly or involuntarily entered into the plea agreement.

       The plea agreement provides two exceptions to the waiver-of-appeal

provision. First, the agreement provides that defendant specifically does not

waive the right to appeal an upward departure from the sentencing guideline range


                                            -3-
determined by the court. In the instant case, defendant’s sentence of seventy

months of imprisonment was well within the applicable guideline range of seventy

to eighty-seven months of imprisonment as determined by the court. Second, the

agreement provides that defendant’s waiver of his right to appeal shall not apply

to appeals based on changes in the law reflected in Tenth Circuit or Supreme

Court cases decided after the date of the agreement which are held by the Tenth

Circuit or Supreme Court to have retroactive effect. This exception is

inapplicable to the instant appeal.

      Because defendant waived his right to appeal the sentence he received as a

result of his plea agreement, this appeal is DISMISSED.


                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




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