                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       April 18, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                  No. 06-1061
                                                (D.C. No. 03-CR-00605 M SK)
    FLA VIO PELA YO-TO RR ES,                             (D . Colo.)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before L UC ER O, M cKA Y, and GORSUCH, Circuit Judges.




         Defendant Flavio Pelayo-Torres pled guilty to one count of unlawful

reentry of a deported alien subsequent to an aggravated felony 1 conviction, for



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
        A n aggravated felony is defined in 8 U.S.C. § 1101(a)(43). U.S.S.G.
§ 2L1.2(b)(1)(C), app. n.3. Section 1101(a)(43)(B) defines an aggravated felony
as illicit trafficking in a controlled substance, as defined by 21 U.S.C. § 802(6),
including a drug trafficking crime, as defined by 18 U.S.C. § 924(c)(2). A drug
trafficking crime is any felony punishable under the Controlled Substances A ct,
21 U.S.C. § 801 et seq. 18 U.S.C. § 924(c)(2).
possession/sale of cocaine base, in violation of 8 U.S.C. § 1326(a) and (b)(2).

Pursuant to a written plea agreement under Fed. R. Crim. P. 11(c)(1)(C), the

district court sentenced him to seventy-seven months’ imprisonment, followed by

three years of supervised release. He appeals his imprisonment sentence.

      M r. Pelayo-Torres’ counsel filed an Anders brief, indicating that this court

lacks jurisdiction to review the sentence and therefore the appeal is frivolous, and

she moved to withdraw as counsel. See Anders v. California, 386 U.S. 738

(1967). M r. Pelayo-Torres filed a pro se response arguing, based on United States

v. Booker, 543 U.S. 220 (2005), and Apprendi v. New Jersey, 530 U.S. 466

(2000), that his Sixth Amendment rights were violated by the district court’s, and

not a jury’s, finding that he had been previously convicted of an aggravated

felony. The government declined to file a brief.

      After counsel’s Anders brief was filed, the Supreme Court decided Lopez v.

Gonzales, 127 S. Ct. 625 (2006). Lopez held that a state drug trafficking offense

is an aggravated felony if it would be punished as a felony under the Controlled

Substances Act, 21 U.S.C. § 801 et seq. Lopez, 127 S. Ct. at 629-31, 633; see

also United States v. M artinez-M acias, 472 F.3d 1216, 1217, 1218 (10th Cir.

2007) (applying Lopez in § 1326 case where aggravated felony was state felony

conviction for possession of cocaine). W e asked the parties to file briefs

addressing what effect, if any, Lopez has on this case. The government argues

that Lopez has no effect and this court lacks jurisdiction to review the length of

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M r. Pelayo-Torres’ sentence. M r. Pelayo-Torres’ counsel argues that under Lopez

the aggravated felony portion of the sentence must be set aside. Counsel,

however, has not withdrawn her motion to withdraw. For the reasons discussed

below, we grant M r. Pelayo-Torres’ counsel’s motion to withdraw and dismiss the

appeal.

                                          I

      M r. Pelayo-Torres is a citizen of M exico. In 1996, he was convicted in

California of felony possession of cocaine base with intent to sell in violation of

California Health & Safety Code § 11351.5 and sentenced to two years’

imprisonment. In July 2002, he was deported to M exico, having been deported to

M exico on five other occasions. M r. Pelayo-Torres returned to the United States

yet again and was found in Colorado on M arch 23, 2003.

      The government charged him with unlawful reentry of a deported alien

subsequent to an aggravated felony conviction in violation of § 1326(a) and

(b)(2). M r. Pelayo-Torres and the government entered into a plea agreement in

which he agreed to plead guilty to the charge in exchange for the government’s

stipulation to a sentence at the bottom of the applicable Sentencing Guidelines

range. At the plea hearing, the district court deferred acceptance of the plea

agreement until the time of sentencing. Upon receiving and reviewing the

Presentence Report, the district court accepted the stipulation and plea agreement




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and, in compliance with Rule 11(c)(1)(C) and following the plea agreement, 2

sentenced M r. Pelayo-Torres to seventy-seven months’ imprisonment. At

sentencing, the parties made no objections to the factual contents of the

Presentence Report or its calculation of the sentence under the G uidelines;

neither did they contend that a non-G uidelines sentence was appropriate.

                                         II

      Under Anders, “counsel [may] request permission to withdraw [from an

appeal] 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) (citing Anders, 386 U.S. at 744). This process requires counsel

to

      submit a brief to the client and the appellate court indicating any
      potential appealable issues based on the record. The client may then
      choose to submit arguments to the court. 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. (internal citations to Anders, 386 U.S. at 744, omitted). W e conclude, after

examining the record and the relevant law , that M r. Pelayo-Torres’ appeal of his

sentence meets this standard.




2
      Under Rule 11(c)(1)(C), a stipulated sentence “binds the court once the
court accepts the plea agreement.”

                                         -4-
      Under Rule 11(c)(1)(C), parties entering into a plea agreement may “agree

that a specific sentence or sentencing range is the appropriate disposition of the

case, . . . (such a recommendation or request binds the court once the court

accepts the plea agreement).” Because M r. Pelayo-Torres agreed to and received

the specific sentence set forth in the Rule 11(c)(1)(C) plea agreement, he may

appeal his sentence only if it was imposed (1) in violation of the law ; (2) due to

an incorrect application of the Sentencing Guidelines; or (3) in excess of the

sentence set forth in the plea agreement. 18 U.S.C. § 3742(a), (c); see Calderon,

428 F.3d at 932. Otherw ise, this court lacks jurisdiction over this appeal. See

Calderon, 428 F.3d at 932.

      M r. Pelayo-Torres’ sentence was not imposed in violation of the law.

In addressing this issue, we first consider Lopez. M r. Pelayo-Torres’ 1996

conviction for possession/sale of crack cocaine base, a drug trafficking crime,

would be punished under the Controlled Substances A ct as felony possession with

intent to distribute a controlled substance. See 21 U.S.C. § 841. This conviction

therefore is not for mere possession prohibited by 21 U.S.C. § 844, 3 and, thus,

Lopez has no effect on this case. See Lopez, 127 S. Ct. 629-30 & n.4 (recognizing

that federal statutes typically treat trafficking as felony and possession as



3
      California differentiates between possession with intent to sell and mere
possession. Compare Cal. Health & Safety Code § 11351.5 (possession
of cocaine base for sale) with id. § 11350 (possession of cocaine base, see
Cal. H ealth & Safety Code §11054(f)(1)).

                                          -5-
misdemeanor); see also United States v. Chavez-Avila, No. 06-4169, 2007 W L

293530, at *1 & n.2 (10th Cir. Feb. 2, 2007) (unpublished) (deciding Lopez had

no effect in § 1326 case where enhancement was California conviction for

possession/sale of controlled substance).

      Pointing to the language of the Presentence Report, 4 M r. Pelayo-Torres

argues that under Lopez his sentence was improperly enhanced because there is no

indication that he was the actual seller of drugs and trafficking is required for an

aggravated felony conviction. In addition, he argues that there is no indication

that the amount of drugs found was more than for personal use–a federal

misdemeanor. Such arguments do not help his cause in this appeal. Lopez does

not authorize a federal court to look at the underlying facts of the state

conviction; rather, Lopez considered the state conviction in relation to federal law

w ithout reexamining the validity of the underlying conviction. Accordingly, we

must assume the validity of M r. Pelayo-Torres’ 1996 conviction for

possession/sale of cocaine base, and he may not collaterally attack that conviction



4
      The Presentence Report recites the following facts:

      undercover officers solicited an individual to purchase a small
      amount of crack cocaine. This individual then traveled to an
      apartment, and returned a short time later, giving the undercover
      officer a small rock of cocaine in exchange for $20. Officers then
      entered the apartment, and arrested [M r. Pelayo-Torres], and found
      an unknown amount of crack cocaine.

Presentence Report at 9.

                                         -6-
in this appeal. See Custis v. United States, 511 U.S. 485, 487, 497 (1994)

(deciding that defendant may not use federal-sentencing forum to collaterally

attack validity of prior state convictions used for sentence enhancement, except

for convictions obtained in violation of right to counsel); United States v.

Delacruz-Soto, 414 F.3d 1158, 1166-67 (10th Cir. 2005) (applying Custis to case

addressing § 1326 and U.S.S.G. § 2L1.2).

      Having concluded that Lopez has no effect on this appeal, we proceed to

consider M r. Pelayo-Torres’ remaining arguments. He first contends that his

sentence was imposed in violation of the law because the indictment did not

allege that he had been convicted of committing an aggravated felony before his

deportation. This is simply incorrect. See R., Vol. I, Doc. 1. In any event, there

is no such charging requirement. See Almendarez-Torres v. United States,

523 U.S. 224, 226-27, 247 (1998) (holding that neither § 1326 nor Constitution

requires government to charge in indictment earlier conviction used to increase

sentence of recidivist); see also United States v. M oore, 401 F.3d 1220, 1223-24

(10th Cir. 2005) (recognizing that Booker did not overrule Almendarez-Torres).

      Citing Booker and Apprendi, M r. Pelayo-Torres next argues that his Sixth

Amendment rights were violated when the judge and not a jury found that he had

been convicted of an aggravated felony previously. W ithout the

aggravated-felony finding, he contends he would have been subject to only a

tw o-year maximum sentence. See 8 U.S.C. § 1326(a). In Booker, 543 U.S. at

                                         -7-
244, the Supreme Court “reaffirm[ed] [its] holding in Apprendi [that a]ny fact

(other than a prior conviction) which is necessary to support a sentence exceeding

the maximum authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury beyond a reasonable

doubt.” Clearly, “Booker . . . is not implicated w here the district court accepts a

stipulated sentence under a Rule 11(c)(1)(C) plea bargain.” See United States v.

Graham, 466 F.3d 1234, 1240 (10th Cir. 2006); see also United States v. Silva,

413 F.3d 1283, 1284 (10th Cir. 2005) (“nothing in Booker undermines the validity

of sentences imposed under Rule 11(c)(1)(C)”).

      Because M r. Pelayo-Torres’ sentence conformed to the stipulated sentence

in his plea agreement and w as less than the statutory maximum of twenty years,

see 8 U .S.C. § 1326(b)(2), it did not violate the law. That is, because

M r. Pelayo-Torres’ sentence arises from the plea agreement, not from the

Guidelines, the district court could not apply the Guidelines incorrectly; and,

because M r. Pelayo-Torres received exactly the sentence he bargained for, he

cannot argue the district court exceeded its authority under the terms of his plea

agreement. See Calderon, 428 F.3d at 932.




                                          -8-
                                   *    *     *

      This appeal is dismissed for lack of jurisdiction. Counsel’s motion to

withdraw is granted.

                                                   Entered for the Court



                                                   Neil M . Gorsuch
                                                   Circuit Judge




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