                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         AUG 11 2003
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 02-3388
          v.                                            (D. Kansas)
 JAMES SCROGER,                              (D.C. No. 02-CR-20043-01-JWL)

               Defendant-Appellant.




                           ORDER AND JUDGMENT *


Before EBEL, HENRY, and HARTZ, 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). The case is

therefore ordered submitted without oral argument.

      James Scroger appeals from his conviction and sentence for attempting to

manufacture five or more grams of methamphetamine. Mr. Scroger’s counsel



      *
        This order and judgment is not binding precedent, except under the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.
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and moves for

leave to withdraw as counsel. For the reasons set out below, we grant counsel’s

motion to withdraw and dismiss the appeal.

      Mr. Scroger was charged in a three count indictment with one count of

attempting to manufacture 5 grams or more of methamphetamine, one count of

conspiring to manufacture 5 grams or more of methamphetamine, and one count

of making available for use a building for the unlawful manufacture of

methamphetamine. Mr. Scroger entered into a plea agreement pursuant to which

he agreed to plead guilty to Count 1 (attempting to manufacture 5 grams or more

of methamphetamine) in exchange for the government’s agreement to dismiss the

two remaining counts and to a sentence of ninety-seven months’ imprisonment.

The trial court accepted both the guilty plea and the plea agreement.

      Anders holds that if counsel finds a case to be wholly frivolous after

conscientious examination, he may advise the court and request permission to

withdraw. Counsel must also submit to both the court and his client a brief

referring to anything in the record arguably supportive of the appeal. The client

may then raise any point he chooses, and the court thereafter undertakes a

complete examination of all proceedings and decides whether the appeal is in fact

frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss




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the appeal. See Anders, 386 U.S. at 744. Mr. Scroger has not filed an additional

appellate brief.

       It is important to note at the outset that Mr. Scroger entered guilty plea on

Count 1 of the indictment and he has thereby waived his rights to appeal any

non-jurisdictional issues or antecedent constitutional defects. See, e.g., United

States v. Dwyer, 245 F.3d 1168, 1170 (10th Cir. 2001).

      Mr. Scroger did not file a response to the Anders brief and the government

did not file a reply brief. Counsel also notes that, in his plea agreement, Mr.

Scroger specifically waived his right to appeal his sentence unless it exceeded the

statutory maximum. Counsel notes that the sentence did not exceed the statutory

maximum and that the sentence was not based on the defendant’s race or other

impermissible factor. See United States v. Cockerham, 237 F.3d 1179, 1182 (10th

Cir. 2001). As to a potential ineffective assistance of counsel claim, counsel

notes he would have a conflict in arguing ineffective assistance. We also note

that “[i]neffective 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).

      To avoid dismissal of his appeal, Mr. Scroger must show why we should

not enforce the plea agreement. United States v. Rubio, 231 F.3d 709, 711 (10th

Cir. 2000). During the plea colloquy, the district court informed Mr. Scroger



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about the consequences of entering , and specifically outlined the waiver of the

right to appeal. Mr. Scroger responded that he understood the plea agreement and

that he entered into the agreement voluntarily. After careful review of the entire

proceedings, we agree with counsel that no non-frivolous grounds for appeal

appear on this record. We see nothing in the record to indicate that Mr. Scroger’s

guilty plea was not knowing and voluntary, nor do we discern any error in the

district court’s acceptance of the plea or in the terms of the plea agreement.

Moreover, Mr. Scroger was sentenced within statutory limits. Hence, there are no

sentencing issues for appeal.

      Accordingly, we GRANT counsel’s request to withdraw and we DISMISS

the appeal.



                                               Entered for the Court,


                                               Robert H. Henry
                                               Circuit Judge




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