                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 4 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,
                                                         No. 02-5081
    v.                                               D.C. No. 99-CR-66-C
                                                       (N.D. Oklahoma)
    ARMANDO PADILLA,

                Defendant - Appellant.


                             ORDER AND JUDGMENT          *




Before PORFILIO and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.



         Appellant Armando Padilla pled guilty to one count of distribution of an

unspecified amount of methamphetamine. Based on its findings regarding the

quantity of drugs involved, the district court sentenced Mr. Padilla to over

twenty-four years’ imprisonment, in excess of the statutory maximum. Mr.


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
Padilla appealed his initial sentence to this court. Relying on Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000), we reversed and remanded for re-sentencing.

      At re-sentencing, it was determined that the sentencing guidelines range

was 292-365 months, and the statutory maximum sentence was 240 months. Since

there were no grounds for a downward departure, the district court’s only option

was to sentence Mr. Padilla to 240 months’ imprisonment. Mr. Padilla had

previously waived his right to appeal his sentence unless it exceeded the statutory

maximum. Nonetheless, Mr. Padilla proceeded to file a pro se notice of appeal.

Pursuant to 10th Cir. R. 46.3, the counsel representing Mr. Padilla at re-

sentencing were required to continue their representation on appeal. Counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and have

moved for leave to withdraw. Mr. Padilla did not file a response to the Anders

brief and the government did not file a reply brief.

      In their Anders brief counsel raised the issue of whether Mr. Padilla’s trial

attorney was ineffective in failing to advise him of the effects of relevant conduct

when pleading to a lesser amount of drugs. By allowing Mr. Padilla to testify

without advising him regarding relevant conduct, trial counsel allegedly caused an

increase in his offense level, and accordingly, his guideline range. Ineffective

assistance of counsel claims should be brought in collateral proceedings, not on

direct appeal.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995).


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Appellate counsel concedes this point. Counsel also notes that, in his plea

agreement, Mr. Padilla waived all appellate rights, except his right to appeal if the

sentence exceeded the statutory maximum.

      To avoid dismissal of his appeal, Mr. Padilla must show why we should not

enforce the waiver provision of the plea agreement. United States v. Rubio,

231 F.3d 709, 711 (10th Cir. 2000). Whether a defendant’s waiver was knowing

and voluntary is reviewed de novo. Id. at 712. Mr. Padilla has offered no

argument as to the validity of the waiver, and nothing in the record suggests that

Mr. Padilla’s decision to consent to the waiver was unknowing or involuntary. “If

the waiver is effective, we would certainly overreach our jurisdiction to entertain

this appeal when the plea agreement deprived Defendant of the right to appeal.”

Id. at 711.

      Accordingly, we DISMISS this appeal and GRANT counsels’ motions to

withdraw.


                                                     Entered for the Court



                                                     Wade Brorby
                                                     Senior Circuit Judge




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