                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                       October 25, 2005
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                         Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.
                                                       No. 04-2229
                                                   (D.C. No. CR-04-937)
 JOSE ABEL NAVARRO-CHAPAS,
                                                         (D. N.M.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      Jose Abel Navarro-Chapas pled guilty to one count of illegally reentering

the United States following deportation for an aggravated felony, in violation of 8

U.S.C. § 1326, and received a sentence of 24 months’ imprisonment. Navarro-

Chapas’ counsel filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and moved for leave to withdraw as counsel. We GRANT counsel’s

motion to withdraw and DISMISS the appeal.


      *
        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judgment is not binding precedent, except under the doctrines of law of the case,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.
      If counsel conscientiously examines a case and determines that any appeal

would be wholly frivolous, Anders authorizes counsel to so advise the court and

request permission to withdraw. Counsel must submit a brief to both the

appellate court and the client pointing to anything in the record that would

potentially present an appealable issue. The client may then choose to offer any

argument to the court. If the court, upon completely examining the record,

determines that the appeal is in fact frivolous, it may grant counsel’s request to

withdraw and dismiss the appeal. Id. at 744. In the present case, counsel, acting

pursuant to Anders, provided Navarro-Chapas with a copy of his appellate brief

and the defendant has not filed a pro se brief raising any argument. The

defendant did request that counsel “challenge the length of his sentence.”

Appellant’s Br. at 5.

      Navarro-Chapas pled guilty pursuant to a plea agreement, which includes

an appeal waiver that states: “the defendant waives the right to appeal the

sentence imposed in this case except to the extent, if any, that the Court may

depart upwards from the applicable sentencing guideline range as determined by

the Court.” The district court did not depart upwards when imposing sentence.

Rather, the court rejected the presentence report’s recommended base offense

level of 17, and applied the parties’ stipulated offense level of 15 pursuant to

Rule 11(c)(1)(C). The court then sentenced Navarro-Chapas at the very bottom of


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the range to 24 months’ imprisonment. Thus, the terms of the plea agreement bar

Navarro-Chapas from challenging the length of his sentence on appeal.

      We will enforce a waiver of appellate rights if the issue appealed falls

within the scope of the waiver and if the record reveals that the defendant

knowingly and voluntarily waived his appellate rights. United States v. Hahn,

359 F.3d 1315, 1325 (10th Cir. 2004). Additionally, we will decline to enforce a

valid appeal waiver if enforcement would result in a miscarriage of justice. Id.

Careful review of the record in this case reveals that the appeal waiver squarely

covers Navarro-Chapas’ challenge to the length of his sentence and that the

defendant knowingly and voluntarily waived his appellate rights. Moreover,

enforcing the waiver would not result in a miscarriage of justice.

      As the waiver would preclude appeal of Navarro-Chapas’ sentence, appeal

on the ground specified by the defendant would be futile. Because Navarro-

Chapas has no meritorious grounds for appeal, we GRANT counsel’s request to

withdraw and we DISMISS the appeal.

                                             ENTERED FOR THE COURT


                                             Carlos F. Lucero
                                             Circuit Judge




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