                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        MAY 29 2002
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 02-8000
v.                                               (D.C. No. 01-CR-043-1B)
                                                   (District of Wyoming)
JOE THOMAS,

          Defendant - Appellant.




                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, 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). We, therefore,

honor the parties’ requests and order the case submitted without oral argument.

      Defendant-Appellant Joe Thomas pleaded guilty to a single count of

conspiracy to traffic in methamphetamine in violation of 21 U.S.C. §§ 846,


      *
       This order and judgment is not binding precedent, except under the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.
841(a)(1), and 841(b)(1)(A). In calculating Thomas’ sentence, the district court

applied the cross-reference contained in United States Sentencing Guideline §

2D1.1(d)(1) 1 and sentenced Thomas to a term of imprisonment of 360 months.

Thomas appeals, claiming that the district court committed clear error in applying

the cross-reference in § 2D1.1(d)(1). Because Thomas waived his right to appeal

the sentence he received as a result of the plea agreement, this court dismisses his

appeal for lack of jurisdiction. See United States v. Rubio, 231 F.3d 709, 711

(10th Cir. 2000) (“If Defendant’s waiver [of appeal rights] is effective, we would

certainly overreach our jurisdiction to entertain this appeal when the plea

agreement deprived Defendant of the right to appeal.”).

      In his opening brief, Thomas does not acknowledge the waiver-of-appeal

provision in the plea agreement and, instead, simply addresses the merits of the

propriety of the district court’s use of the cross-reference in § 2D1.1(d)(1). In its

response brief, the United States notes that the plea agreement contains the

following waiver-of-appeal provision:

            The Defendant agrees to waive his right to appeal the sentence
      he receives as a result of this Plea Agreement. However, if the
      United States appeals the Defendant’s sentence pursuant to 18 U.S.C.
      § 3742(b), the Defendant is released from this waiver.


      1
        Section 2D1.1(d)(1) provides as follows: “If a victim was killed under
circumstances that would constitute murder under 18 U.S.C. § 1111 had such
killing taken place within the territorial or maritime jurisdiction of the United
States, apply § 2A1.1 (First Degree Murder).”

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The United States further notes that this court honors such waivers, as long as the

plea was knowing and voluntary. See Rubio, 231 F.3d at 712. The United States

then undertakes a thorough exposition of the plea proceedings, demonstrating that

Thomas entered the plea agreement knowingly and voluntarily. Thomas did not

file a reply brief and, hence, does not contest the United States’ assertion that he

knowingly and voluntarily entered into the plea agreement and that the agreement

waives his right to bring the present appeal. Nevertheless, in an abundance of

caution, this court has undertaken a detailed review of the entire record in this

case to verify that Thomas’ plea was knowing and voluntary. See id. (“We review

the question of whether the plea was knowing and voluntary de novo.”).

      Pursuant to the plea agreement, Thomas appeared in court on September 26,

2001, to formally enter his plea. As the hearing commenced, Thomas’ counsel

began by noting for the record that he was going to have Thomas review the plea

agreement to make sure that it was the same document that he had signed

previously. After that process was complete, the court called the case and the

government’s attorney orally described the salient provisions of the agreement,

including in particular the fact that it required Thomas to waive the right to

appeal his sentence. At that same time, the government’s attorney highlighted

that the principal sentencing issue would likely be the applicability of §

2D1.1(d)(1). The district court then generally discussed the terms of the plea


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agreement and the nature of the charge set out in the indictment. At that point,

the district court placed Thomas under oath and engaged in the following

colloquy:

              THE COURT: Mr. Thomas, is your plea of guilty a voluntary
      plea?
             THE DEFENDANT: Yes, Your Honor, it is.
             THE COURT: Is anybody forcing you to plead guilty?
             THE DEFENDANT: No, Your Honor.
             THE COURT: Has your attorney made you plead guilty?
             THE DEFENDANT: No, Your Honor.
             THE COURT: Is it your own idea?
             THE DEFENDANT: Yes, Your Honor.
             THE COURT: And why are you pleading guilty?
             THE DEFENDANT: Because, Your Honor, in fact, I am guilty
      of the charge.

Following this colloquy, Thomas established a more specific factual basis for the

charge to which he was pleading guilty. Then, based on the foregoing, the district

court concluded that Thomas’ plea was knowing and voluntary and that there

existed a sufficient factual basis to support it. The district court, therefore,

accepted the guilty plea and directed that sentencing proceedings commence.

      The record, as set out above, makes clear that Thomas knowingly and

voluntarily entered into the plea agreement, which contains a valid waiver-of-




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appeal provision. Therefore, a valid plea agreement exists and Thomas is bound

by its terms. Accordingly, this appeal is DISMISSED for lack of jurisdiction.

                                     ENTERED FOR THE COURT



                                     Michael R. Murphy
                                     Circuit Judge




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