                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 26 2000
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                     No. 99-6049
                                                   (D.C. No. 98-CR-61)
 RODNEY ALPHONZE                               (Western District of Oklahoma)
 ARCENEAUX,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BALDOCK, HENRY and LUCERO, Circuit Judges.



      Pro se appellant Rodney Alphonze Arceneaux challenges his conviction

under 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, for possession with intent to

distribute cocaine base (“crack”) and aiding and abetting, as well as his sentence

of 292 months imprisonment. Arceneaux asserts five claims: (1) the district court

erred in denying his motion to withdraw his guilty plea; (2) the district court erred



      *
       The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
in its application of U.S.S.G. § 2D1.1(b)(1); (3) the district court erred in its

application of the departure provisions of the Sentencing Guidelines; (4) his

detention and arrest were unlawful; and (5) a search resulting in the seizure of

incriminating evidence was unlawful. Arceneaux’s attorney believes that

Arceneaux’s appeal is wholly frivolous. He therefore has filed both a motion to

withdraw as attorney of record and a corresponding Anders brief outlining

Arceneaux’s claims. See Anders v. California, 386 U.S. 738, 744 (1967). Anders

requires that such a brief refer to “anything in the record that might arguably

support the appeal.” Id. Counsel furnished Arceneaux a copy of the brief, and

Arceneaux has had the opportunity to respond or raise additional claims. See id.

Based on our own independent review of the record, we conclude that

Arceneaux’s claims are wholly frivolous. We grant counsel’s motion to

withdraw, deny Arceneaux’s motions for appointment of appellate counsel and

permission to proceed in forma pauperis, and affirm his sentence.

      We review a district court’s denial of a motion to withdraw a plea prior to

sentencing for abuse of discretion “and will not reverse absent a showing that the

court acted unjustly or unfairly.” United States v. Graves, 106 F.3d 342, 343

(10th Cir. 1997) (quotation and citation omitted); see also Fed. R. Crim. P. 32(e).

“[A] defendant’s motion to withdraw a plea before sentencing should be ‘freely

allowed’ and ‘given a great deal of latitude . . . .’” United States v. Kramer, 168


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F.3d 1196, 1202 (10th Cir. 1999) (quoting United States v. Carr, 80 F.3d 413, 419

(10th Cir. 1996)). Under our precedent, “[t]he defendant bears the burden of

showing that a denial of a motion to withdraw a plea was not ‘fair and just.’”

United States v. Killingsworth, 117 F.3d 1159, 1161 (10th Cir. 1997) (quoting

United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993)). “[C]ourts should

consider [seven factors] in determining whether the defendant has shown a fair

and just reason for allowing withdrawal of a guilty plea: (1) whether the

defendant has asserted innocence; (2) prejudice to the government if the motion is

granted; (3) whether the defendant has delayed filing the motion to withdraw his

plea; (4) inconvenience to the court if the motion is granted; (5) the quality of the

defendant’s assistance of counsel during the plea; (6) whether the plea was

knowing and voluntary; and (7) the waste of judicial resources.” Id. at 1161-62

(citing Gordon, 4 F.3d at 1572).

      Construing Arceneaux’s pro se pleadings liberally, as required under

Haines v. Kerner, 404 U.S. 519, 520-21 (1972), Arceneaux claims the denial of

his motion to withdraw his plea was unfair and unjust because his plea was not

“knowing and voluntary” and because of the poor quality of the assistance of

counsel he received.   Killingsworth , 117 F.3d at 1161-62. Specifically, he argues

that his plea was not knowing or voluntary because his counsel erroneously and

incompetently advised him not to challenge a search warrant for his girlfriend’s


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apartment or a fingerprint analysis purporting to show his fingerprints on a

package of cocaine found in the apartment, in part based on his counsel’s belief

that the government might seek to apply a “three-strikes” law if he chose to go to

trial.

         Our Circuit’s test for “[w]hether a defendant entered a knowing and

voluntary guilty plea” is whether the plea was “knowing and the product of

deliberate, intelligent choice. Furthermore, the defendant must have a full

understanding of what the plea connotes and of its consequences.”     Cunningham

v. Diesslin , 92 F.3d 1054, 1060 (10th Cir. 1996) (citations and internal quotation

omitted). Our review of the transcript of the plea hearing in this case indicates

the court ascertained that Arceneaux understood the plea agreement and fully

advised him of the legal consequences of the plea. As for his allegation that he

did not receive competent assistance of counsel, Arceneaux cites no evidence that

would lead us to conclude his counsel’s performance was in any way deficient,

and our review of the record supports that conclusion. Arceneaux’s challenges to

the search and the fingerprint analysis are similarly devoid of support in the

record. Because we find that Arceneaux’s plea was knowing and voluntary and

that he received adequate assistance of counsel, the district court did not abuse its

discretion in denying his motion to withdraw his plea, and Arceneaux’s claims to

the contrary are wholly frivolous.


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       By virtue of his unconditional guilty plea, Arceneaux’s claims regarding the

legality of his detention and arrest and of the search are waived. “When a

criminal defendant has solemnly admitted in open court that he is in fact guilty of

the offense with which he is charged, he may not thereafter raise independent

claims relating to the deprivation of constitutional rights that occurred prior to the

entry of the guilty plea.”   Tollet v. Henderson , 411 U.S. 258, 267 (1973);   see also

United States v. Davis , 900 F.2d 1524, 1526 (10th Cir. 1990) (holding that an

unconditional guilty plea waives all nonjurisdictional defenses including Fourth

Amendment claims).

       With regard to Arceneaux’s claim that the district court erred in enhancing

his sentence by two points for possession of a dangerous weapon, “[w]e review

factual findings under U.S.S.G. § 2D1.1(b)(1) for clear error; we give due

deference to the application of the Guidelines to the facts; [and] we review purely

legal questions de novo.”     United States v. Vaziri , 164 F.3d 556, 568 (10th Cir.

1999) (citing United States v. Underwood , 982 F.2d 426, 428 (10th Cir. 1997)).

“‘The [enhancement for weapon possession] should be applied if the weapon was

present, unless it is clearly improbable that the weapon was connected with the

offense.’” United States v. Smith , 131 F.3d 1392, 1400 (10th Cir. 1997) (quoting

U.S.S.G. § 2D1.1, comment. (n.3)). The government bears the initial burden of

proving Arceneaux’s possession of the gun by a preponderance of the evidence,


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which “may be satisfied by showing mere proximity to the offense.”     Id. In the

present case, the government showed that the gun was found at a residence in

which police also found a bag of crack cocaine with Arceneaux’s fingerprints on

the bag. In addition, the tenants of the apartment told police that the gun

belonged to Arceneaux and that he had left it in the apartment that morning. That

showing was more than sufficient to meet     Vaziri ’s “proximity to the offense”

standard, and Arceneaux offered no evidence in rebuttal.     Id. Therefore, it was

not error for the district court to enhance his sentence for possession of a

dangerous weapon under U.S.S.G. § 2D1.1(b)(1), and his claim of error is wholly

frivolous.

      As regards the court’s refusal to depart downward from the Guidelines

range, we “cannot exercise jurisdiction to review a sentencing court’s refusal to

depart from the Guidelines, either upward or downward, unless the court refused

to depart because it interpreted the Guidelines to deprive it of the authority to do

so.” United States v. Fortier, 180 F.3d 1217, 1231 (10th Cir. 1999) (citations

omitted). “Equally clear in our circuit . . . is that we treat ambiguous statements

made by district judges as though the judge was aware of his or her legal

authority to depart but chose instead, in an exercise of discretion, not to depart.”

Id. That is the case here: The district court exercised its discretion not to depart.




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Because we lack jurisdiction to review that decision, this claim, too, is wholly

frivolous.

      Finally, because the foregoing claims are wholly frivolous, Appellant’s

motion for appointment of new appellate counsel is DENIED and, although he has

demonstrated “a financial inability to pay the required fees,” absent “the existence

of a reasoned, nonfrivolous argument on the law and facts in support of the issues

raised on appeal,” his motion to proceed     in forma pauperis is also DENIED.

      The mandate shall issue forthwith.

                                           ENTERED FOR THE COURT



                                           Carlos F. Lucero
                                           Circuit Judge




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