                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                     September 12, 2005
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 04-8099
v.                                                (District of Wyoming)
                                                (D.C. No. 04-CR-73-WFD)
JOE PATRICK LOWE,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this court 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.



      *
       This order and judgment is not binding precedent, except under the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.
      Defendant-appellant Joe Patrick Lowe pleaded guilty to conspiracy to

distribute more than 500 grams of methamphetamine in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A), and § 846. Lowe’s Presentence Report (“PSR”)

calculated a base offense level of thirty-four based on relevant conduct of at least

1.5 kilograms of methamphetamine. The PSR added two offense levels for

possession of a dangerous weapon, and two more levels for Lowe’s role in the

offense. The PSR then subtracted three levels for Lowe’s acceptance of

responsibility, resulting in a total offense level of thirty-five. Combined with a

criminal history category of IV, this offense level resulted in a sentencing range

under the United States Sentencing Guidelines of 235 to 293 months’

imprisonment.

      Shortly after Lowe entered his guilty plea, the United States Supreme Court

decided Blakely v. Washington, 542 U.S. 296 (2004). In light of the uncertainty

cast upon the constitutionality of the Guidelines in the wake of Blakely, the

government and Lowe agreed to stipulate that no sentencing enhancements would

be applied under the Guidelines other than the enhancement for the quantity of

drugs admitted by Lowe in his plea agreement. Lowe’s offense level was thereby

reduced to twenty-nine, and his sentencing range to 121 to 151 months. In return,

Lowe agreed to be sentenced to 151 months’ imprisonment, the high end of the

Guidelines range. After determining that Lowe entered into the stipulation


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knowingly and voluntarily, the district court accepted the stipulation and

sentenced Lowe to 151 months.

      Lowe filed a timely notice of appeal. His counsel then filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), and moved to withdraw.

Anders holds that counsel, finding a client’s appeal to be wholly frivolous upon

conscientious examination, may advise the court and request permission to

withdraw. Id. at 744. The request must “be accompanied by a brief referring to

anything in the record that might arguably support the appeal.” Id. The

defendant must receive a copy of the brief and be given time to raise any points

he chooses. Id. This court must then fully examine the record and decide

whether the appeal is wholly frivolous. Id. If it so finds, the court may grant

counsel’s request to withdraw and dismiss the appeal. Id.

      Lowe’s counsel, after reviewing the record, asserts that he has been unable

to discover any non-frivolous appealable issues. This court permitted Lowe to

respond to his counsel’s Anders brief, but no such response was filed. Upon

review of the entire record on appeal, we agree with Lowe’s counsel that there are

no non-frivolous appealable issues in this case. Lowe pleaded guilty to

conspiracy to distribute more than 500 grams of methamphetamine, and the record

shows that the plea was entered into knowingly and voluntarily. Furthermore, the

record reveals that Lowe knowingly and voluntarily stipulated to a sentence of


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151 months. Under these circumstances, we can see no basis on which Lowe

could challenge either his conviction or sentence on appeal.

      The Supreme Court’s subsequent decision in United States v. Booker, 125

S. Ct. 738 (2005), in no way undermines this conclusion. This court has

previously held that the decision in Booker does not render prior plea agreements

unknowing or involuntary. United States v. Green, 405 F.3d 1180, 1190 (10th

Cir. 2005). Nor does Booker cast any doubt on the legality of Lowe’s sentence.

The sentence imposed by the district court did not violate Lowe’s Sixth

Amendment rights under Booker because the only sentence enhancement applied

by the district court was based on the quantity of drugs admitted in the plea

agreement. See Booker, 125 S. Ct. at 756. Furthermore, the district court did not

violate Booker’s remedial holding by applying the Guidelines in a mandatory

fashion. See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th

Cir.2005) (en banc). Instead, the district court sentenced Lowe based on the

parties’ stipulation at sentencing. Cf. United States v. Silva, 413 F.3d 1283, 1284

(10th Cir. 2005) (holding that the district court did not commit Booker error in

sentencing the defendant to the specific sentence bargained for in the plea

agreement). The record shows that Lowe agreed to his stipulated sentence

knowingly and with full awareness of the uncertainty regarding the Supreme




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Court’s pending decision in Booker. Lowe’s stipulation was strategically

beneficial to him, and may not be repudiated on appeal. 1

      Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the

appeal.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




      1
        If anything, the Supreme Court’s decision in Booker would likely have led
to a higher sentence in Lowe’s case. As this court has previously noted, nothing
in Booker prohibits district courts from continuing to make factual findings that
enhance a defendant’s sentence under the Guidelines, as long as the court does
not apply the Guidelines in a mandatory fashion. United States v. Lawrence, 405
F.3d 888, 907 (10th Cir. 2005). In fact, district courts are required to consult the
Guidelines and take them into account in exercising their sentencing discretion
under Booker. United States v. Sierra-Castillo, 405 F.3d 932, 936 n.2 (10th Cir.
2005). Thus, Booker would not have prevented the district court from imposing a
sentence within the Guidelines range of 235 to 293 months.

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