                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   October 29, 2008
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,                        No. 08-5000
 v.                                           (Northern District of Oklahoma)
 DEVIN LEE MELCHER, a/k/a                    (D.C. No. 4:07-CR-00018-CVE-1)
 “Chino,” a/k/a “Chino Bling,” a/k/a
 “Bling,”

             Defendant-Appellant.


                          ORDER AND JUDGMENT *


Before TACHA, KELLY and McCONNELL, Circuit Judges.


      Pursuant to a plea agreement, Defendant-Appellant Devin Lee Melcher pled

guilty to the charge of Conspiracy to Possess and Distribute in excess of eighty

(80) pounds of Marijuana and 1.5 kilograms of Methamphetamine, in violation of

21 U.S.C. § 846. As part of the agreement, Mr. Melcher waived all rights to

appeal with the exception of contested guideline or sentencing issues, a sentence



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
above the statutory maximum, and/or a collateral attack claiming ineffective

assistance of counsel regarding the validity of a plea or waiver. Plea Agr. at 3-4.

He was sentenced to serve the statutory maximum sentence of life, which is the

high end of the applicable Sentences Guidelines range, to be followed by a five-

year term of supervised release (presumably applicable only upon early release

for good behavior), and to pay a $100.00 special monetary assessment. He timely

appealed his conviction and sentence.

      Mr. Melcher’s counsel, Beverly A. Atteberry, filed an Anders brief and

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

(1967). Under Anders, an appellant’s counsel who believes that an appeal would

be “wholly frivolous” may withdraw upon submission of a brief indicating

“anything in the record that might arguably support the appeal.” Anders, 386

U.S. at 744. The defendant “may then choose to submit arguments to the court.”

United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). If we conclude,

after a full examination of the record before us, that counsel has diligently

investigated the possible grounds of appeal and the appeal is frivolous, we will

grant the motion to withdraw and dismiss the appeal. Id.; Anders, 386 U.S. at

744. Because we find that neither Mr. Melcher nor his counsel raise any non-

frivolous issues on appeal, we grant counsel’s motion to withdraw and dismiss the

appeal.




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                                 BACKGROUND

      At his sentencing hearing on December 17, 2007, Mr. Melcher made an oral

motion to withdraw his guilty plea. He stated that he had ingested medication

prior to the plea hearing and was therefore impaired and incapable of fully

understanding his plea. After review of Mr. Melcher’s claim, and applying the

factors relevant to withdrawing a plea in United States v. Black, 201 F.3d 1296

(10th Cir. 2000), the district court denied Mr. Melcher’s motion. In sentencing

Mr. Melcher, the district court took into account the nature of the offense, Mr.

Melcher’s leadership role in the drug conspiracy, and Mr. Melcher’s attempts to

intimidate and unlawfully influence witnesses and destroy or conceal evidence

material to an official investigation. Additionally, on account of Mr. Melcher’s

lengthy criminal history, the district court classified Mr. Melcher as a career

offender under U.S. Sentencing Guideline section 4B1.1. Citing the need for the

sentence to reflect the seriousness of the offense, promote respect for the law,

impose a just punishment, and protect the public, the district court imposed the

maximum statutory sentence of life imprisonment.



                                    ANALYSIS

      Mr. Melcher argues that he did not knowingly and voluntarily enter his

guilty plea and waive his appellate rights. In addition to claiming he was

impaired at the change of plea hearing, Mr. Melcher argues that he did not

                                         -3-
understand his plea because he failed to receive sufficient notice of possible

enhancements or his actual sentence in the Rule 11 colloquy, and because his

counsel misrepresented that he would receive no more than a twenty-year

sentence if he pled guilty.

      The record does not support Mr. Melcher’s contentions. Mr. Melcher swore

under oath that he was not under the influence of any drugs or medication at the

change of plea hearing. The district court’s finding of Mr. Melcher’s competency

was also based on its detailed dialogue with Mr. Melcher during the hearing. The

district court conducted its Rule 11 colloquy with Mr. Melcher in open court and

informed Mr. Melcher of his rights, the nature of his offense, and the possible

penalties. The court notified Mr. Melcher that other sentencing issues could arise in

the presentence report and that the terms of the plea agreement were mere

recommendations to the court that might not be followed. Mr. Melcher testified

that he understood. The plea agreement similarly reflected the content of the Rule

11 colloquy with respect to his rights, possible penalties, and the advisory role of

the guidelines, which Mr. Melcher read and initialed on each page.

      Mr. Melcher’s argument regarding misrepresentations of his counsel relating

to his actual sentence similarly contradict the record. Mr. Melcher’s sworn

testimony established that he had a chance to fully discuss the plea agreement with

his counsel, that he understood the agreement, and that neither she nor anyone else

made any other or different promise of any kind. In light of the record, we agree

                                          -4-
with the district court that Mr. Melcher’s plea was knowing and voluntary, and its

denial of his motion to withdraw his guilty plea was neither unjust nor unfair.

      Mr. Melcher also argues that his waiver of appellate rights failed to meet the

knowing and voluntary standard. In determining whether a defendant’s waiver of

his right to appeal is made knowingly and voluntarily, we consider (1) whether the

language of the plea agreement states that the defendant entered the agreement

knowingly and voluntarily, and (2) whether there is an adequate Rule 11 colloquy.

United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004). The defendant bears

the burden of showing that he did not understand the waiver. Id. at 1329. Here,

both of the inquiries indicate the waiver was knowing and voluntary. First, the plea

agreement and Petition to Enter Plea of Guilty stated that Mr. Melcher understood

the plea and that it was free and voluntary. Second, in addition to the issues

previously mentioned, the district court specifically addressed the appeal waiver

and asked Mr. Melcher if he understood it. Mr. Melcher responded affirmatively.

Based on this record, we find that Mr. Melcher’s waiver was knowing and

voluntary. Because Mr. Melcher does not otherwise contest the validity of the

waiver pursuant to Hahn, his argument contesting the district court’s application of

Black to the motion to withdraw his plea, fails as it falls within the scope of the

waiver.

      Mr. Melcher next argues that the standards for knowing and voluntary

waivers are heightened after United States v. Booker, 543 U.S. 220 (2005). He

                                          -5-
argues that the district court was duty-bound to provide more than “lip service” due

to the unpredictability of sentencing post-Booker. This argument appears to be

based on the principle of constitutional avoidance. Mr. Melcher cites no supporting

precedent for his argument, nor do we find logic in it. Rather, our precedent

supports the opposite proposition. In United States v. Green, 405 F.3d 1180, 1190

(10th Cir. 2005), the defendant argued that Booker’s rendering the guidelines

advisory should invalidate the knowing and voluntary aspect of his appellate

waiver. We were not persuaded, holding: “The Supreme Court has made it clear

that a defendant’s decision to give up some of his rights in connection with making

a plea—including the right to appeal from the judgment entered following the

plea—remains voluntary and intelligent or knowing despite subsequent

developments in the law.” Id. Here, Booker was decided before Mr. Melcher

entered his plea. He therefore cannot claim he was unaware of the advisory nature

of the guidelines, especially where his counsel, the plea agreement, and the district

court informed him that they were advisory. We thus hold that Mr. Melcher’s plea

and waiver were knowing and voluntary and otherwise valid.

      Finally, Mr. Melcher argues that his sentence was substantively

unreasonable. The terms of the appellate waiver reserved Mr. Melcher the right to

contest any sentencing issues; thus, he is permitted to raise this argument. The life

sentence in this case was within the Guidelines range and is therefore entitled to a

rebuttal presumption of reasonableness. See United States v. Kistl, 437 F.3d 1050,

                                          -6-
1054 (10th Cir. 2006). Nothing in this case suggests that Mr. Melcher’s within-

Guidelines sentence was unreasonable or that the district court abused its

discretion. The district court articulated specific reasons supporting the sentence it

imposed, based on facts not disputed by Mr. Melcher. Mr. Melcher did not object

to the PSR calculations at his sentencing hearing, just that he was impaired at the

time of entering his plea. Only on appeal does he contest the PSR calculations,

arguing that the enhancing factors were erroneously found by a preponderance of

the evidence. We find that Mr. Melcher’s argument that the facts affecting his

sentence should have been found beyond a reasonable doubt is flatly inconsistent

with the remedial holding of Booker. 1



                                   CONCLUSION

      Having determined that Mr. Melcher’s plea and appellate waiver were

knowing and voluntary, that the sentence was not substantively unreasonable, and

that there is no other basis for challenge to the verdict or sentence, we GRANT




       1
       Mr. Melcher argues that his attorney, Ms. Atteberry, acted incompetently
in both failing to advise him of the actual sentence he would receive and
representing that he would only receive a life sentence if he pled not guilty and
went to trial. We have held, however, that ineffective assistance of counsel
claims generally should not be litigated on direct appeal. United States v.
Galloway, 56 F.3d 1239 (10th Cir. 1995). We therefore decline to address the
ineffective assistance claim in this direct appeal.


                                          -7-
counsel’s motion to withdraw. The appeal from the judgment of the United States

District Court for the Northern District of Oklahoma is DISMISSED.



                                                Entered for the Court,

                                                Michael W. McConnell
                                                Circuit Judge




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