                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                                                                       FILED
                                 No. 05-11601               U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                             Non-Argument Calendar                October 21, 2005
                                                               THOMAS K. KAHN
                                                                      CLERK
                    D.C. Docket No. 02-00087-CR-CB-1-004


UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

versus


DERRICK LAVON PHALO,

                                                          Defendant-Appellant.



                   Appeal from the United States District Court
                      for the Southern District of Alabama

                                (October 21, 2005)

Before CARNES, MARCUS and RONEY, Circuit Judges.

BY THE COURT:

      Peter J. Madden, appointed appellate counsel for Derrick Lavon Phalo in

this direct criminal appeal, has moved to withdraw and filed a brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed.2d 493 (1967).
Counsel’s motion and brief indicate that they were served upon Phalo. The clerk’s

office also notified Phalo of his right to respond to the motion. Phalo has not

responded.

      Phalo entered into a written plea agreement with the government, agreeing

to plead guilty to one count of a fourteen-count indictment: conspiracy to possess

with intent to distribute more than 1.5 kilograms of crack cocaine, 21 U.S.C. § 846

(Count 1). At the change-of-plea hearing, Phalo, under oath, stated that he was

not under the influence of drugs or alcohol, had discussed the charges and the case

with his attorney, and was satisfied with his attorney’s representation and advice.

The court explained to Phalo that he could not withdraw his plea if he was not

satisfied with the court’s sentence. Phalo stated that he understood and that no

one had forced or coerced him to sign the agreement. The court informed Phalo

that by pleading guilty he would lose his right to vote, hold public office, serve on

a jury, and possess firearms. The court stated that the range of punishment

included a mandatory minimum custody sentence of 10 years’ imprisonment

without parole up to a maximum of life imprisonment without parole, a possible

$4 million fine, five years of supervised release, and a $100 special assessment.

Phalo acknowledged that he had discussed the sentencing guidelines with his

attorney and understood how they applied to his case. Phalo acknowledged that

his guilty plea was freely and voluntarily made.


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      Phalo stated, as provided by the plea agreement, that he was willing to

waive his right to appeal unless the court sentenced him above the statutory

maximum, or upwardly departed, or if he had an ineffective assistance of counsel

claim. The plea agreement contained broad appeal waiver language as follows,

“In exchange for the recommendations made by the United States in this

agreement, the defendant knowingly waives the right to appeal any sentence

imposed herein.”

      At sentencing, Phalo argued that he was entitled to a minor role reduction

because he did not deal as much crack cocaine as his co-conspirators and he was

due to receive a lighter sentence. After hearing testimony on the issue, the court

denied Phalo’s motion, determining that there was nothing distinguishable about

his involvement from anyone else. Phalo objected to the assessment of two

criminal history points, contending that there was a five year gap between his

juvenile record and his involvement in this conspiracy. But the court denied the

objection because the basis was not sufficient to warrant removal of the points.

The court sentenced Phalo to 151 months’ imprisonment, recommending that the

Bureau of Prisons house him where he could receive drug treatment, followed by

five years’ supervised release, and imposed a $100 fine.

      Phalo filed a pro se notice of appeal and motion for appointment of

appellate counsel. The court granted Phalo’s motion for appointment of appellate


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counsel, appointing Madden and granted Phalo’s motion to file an out-of-time

notice of appeal.

      An independent plenary review of the record by the court, as required by

Anders, 386 U.S. at 744, 87 S.Ct. at 1400, reveals that counsel properly argues that

there are no arguably meritorious issues to appeal. In his Anders brief, counsel

properly asserts that none of the grounds for appeal reserved in Phalo’s appeal

waiver provision afford him any relief, as first, his sentence was within the

statutory range [Phalo’s 151 months’ imprisonment sentence does not exceed life,

the relevant statutory maximum in his case, see 21 U.S.C. § 841(b)(1)(A)(ii)] ,

second, the court did not upwardly depart, and third, there is no evidence in this

limited record on direct appeal that his attorney was ineffective.

      Although counsel correctly points out that there is no Sixth Amendment

Booker error, plain or otherwise, he asserts that the district court committed a

statutory Booker error by sentencing Phalo under the mandatory sentencing

guidelines regime. Counsel does, however, accurately assert that the appeal

waiver provision of Phalo’s plea agreement was broad enough to dismiss this

argument on appeal. “[T]he right to appeal a sentence based on Apprendi/Booker

grounds can be waived in a plea agreement. Broad waiver language covers those

grounds of appeal.” United States v. Frye, 402 F.3d 1123, 1129 (11th Cir. 2005)




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(quoting United States v. Grinnard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005));

United States v. Rubbo, 396 F.3d 1330, 1335 (11th Cir. 2005)).

      An unconditional guilty plea, made knowingly, voluntarily, and with the

benefit of competent counsel, generally waives all non-jurisdictional defects in the

defendant’s court proceedings. United States v. Pierre, 120 F.3d 1153, 1155 (11th

Cir. 1997). The record does not indicate that there were jurisdictional defects or

that the guilty plea was either conditional or made without the benefit of

competent counsel.

      Counsel’s motion to withdraw is GRANTED, and Phalo’s conviction and

sentence are AFFIRMED.




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