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

                     UNITED STATES COURT OF APPEALS                  SEP 20 2001

                            FOR THE TENTH CIRCUIT               PATRICK FISHER
                                                                          Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-2433
                                                   (D.C. No. CR-00-150-JC)
    JOSE ALBERTO ALEMAN-LUBO,                             (D. N.M.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before ANDERSON and BALDOCK , Circuit Judges, and BRORBY , Senior
Circuit Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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 Jose Alberto Aleman-Lubo pleaded guilty in May 2000 to one

count of possessing with intent to distribute more than 100 kilograms of

marijuana in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(B), and

18 U.S.C. § 2. Pursuant to the plea agreement, defendant waived his right to

appeal the sentence imposed except to challenge an upward departure from the

applicable sentencing guideline range.   See R. Vol. I, tab 21 at 5. In accordance

with the plea agreement, the government recommended that defendant receive

a three-level reduction from his base offense level for acceptance of responsibility

pursuant to § 3E1.1 of the United States Sentencing Guidelines (USSG) and

a three-level reduction for being a minor participant in the crime pursuant to

USSG § 3B1.2. Id. at 3-4. The plea agreement further provided that, if defendant

met the criteria for the “safety valve” provision of 18 U.S.C. § 3553(f), he would

be granted an additional two-level base offense level reduction under USSG

§ 2D1.1(b)(6) and relief from the minimum mandatory sentence.      Id. at 4.

      Based on a pre-sentence investigation, however, it was determined that

defendant did not meet the criteria under 18 U.S.C. § 3553(f) because he had two

convictions for driving while intoxicated and one conviction for driving with a

suspended license and, thus, had a criminal history of II. The sentencing court

found defendant had a total offense level, after all reductions, of twenty and a

criminal history category of II. Because defendant did not qualify for relief under


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§ 3553(f) from the minimum mandatory sentence, and because the range based on

the guidelines was below the statutorily required minimum sentence of sixty

months, the court sentenced defendant to the statutory minimum sentence of sixty

months’ imprisonment pursuant to USSG § 5G.1.1, and four years’ supervised

release.

      Defendant appealed, alleging that the district court should have conducted

a hearing on his criminal history and that he should not have a criminal history

point for driving with a suspended license. Defendant also claims he was denied

equal protection because he did not qualify under a policy of the U.S. Attorney to

seek less prison time for certain first-time drug couriers. Defendant also claims

his trial attorney was ineffective for failing to discover and inform him of the

consequences of his three misdemeanor offenses prior to the time he signed the

plea agreement, and for failing to argue at sentencing that his criminal history was

overstated and that he was denied equal protection under the law.

      On appeal, defendant’s attorney has filed an    Anders v. California , 386 U.S.

738 (1967), brief presenting these issues, and has filed a motion to withdraw.

As required, a copy of counsel’s   Anders brief and motion to withdraw were

provided to defendant,   see id . at 744, and he filed a pro se brief. Pursuant to our

duty under Anders , we have conducted an independent review of defendant’s

sentence, see id ., and we agree that the appeal is frivolous.


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       We decline to address defendant’s arguments that he received ineffective

assistance of counsel. These allegations require development of a factual record

by the district court, and, consequently, are properly brought in a collateral

proceeding and not in this direct appeal.    United States v. Galloway , 56 F.3d

1239, 1240 (10th Cir. 1995) (en banc). We dismiss defendant’s allegations

against his trial attorney without prejudice.

       As to defendant’s remaining claims, the United States correctly argues

that defendant waived his statutory right to appeal by knowingly and voluntarily

waiving that right in his plea agreement.    See United States v. Atterberry   ,

144 F.3d 1299, 1300 (10th Cir. 1998) (agreement to waive right to appeal is

enforceable).

       [A]greements waiving the right to appeal are subject to certain
       exceptions, including where the agreement was involuntary or
       unknowing, where the court relied on an impermissible factor such
       as race, or where the agreement is otherwise unlawful. In addition,
       a waiver may not be used to preclude appellate review of a sentence
       that exceeds the statutory maximum or to deny review of a claim that
       the agreement was entered into with ineffective assistance of
       counsel.

United States v. Cockerham , 237 F.3d 1179, 1182 (10th Cir.),      petition for

cert. filed (U.S. July 23, 2001) (No. 01-5462) (quotations and citations deleted).

Our review of the record reveals that defendant entered into the plea agreement

waiving his appellate rights knowingly and voluntarily. The defendant does not

claim that he did not know the terms of his plea agreement or that his plea was

                                            -4-
unknowing or involuntary. The district court did not depart upward from the

applicable sentencing guideline range nor exceed the statutory maximum

sentence. Finally, as noted above, defendant’s ineffective assistance of counsel

claims are not properly before this court and have been dismissed, so that

exception does not here apply.

      Therefore, we GRANT counsel’s request to withdraw and DISMISS the

appeal.


                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




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