                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 5 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-6338
                                                    (D.C. No. 98-CR-206-T)
    DERRION WONE ANDERSON,                                (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, 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.

         Defendant Derrion Wone Anderson pled guilty to count one of

a multi-count indictment, conspiracy to distribute cocaine base in violation


*
      This order and judgment is not binding precedent, except under the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.
of 21 U.S.C. §§ 841(a)(1) and 846. At sentencing, the government agreed that

under Apprendi v. New Jersey , 530 U.S. 466 (2000), the statutory maximum

sentence and the limit of the sentencing guideline range was 240 months.         See

21 U.S.C. §§ 841(b)(1)(C) (providing that the maximum penalty available for a

cocaine conspiracy that does not involve a specified amount of cocaine is twenty

years (240 months)). The district court applied a downward departure based on

the defendant’s substantial assistance,   see USSG § 5K1.1, and sentenced

defendant to 120 months’ imprisonment.

       On appeal, counsel for defendant has filed a brief pursuant to      Anders v.

California , 386 U.S. 738 (1967), indicating her belief that the record contains no

meritorious issues for appeal. Defense counsel has also filed a motion requesting

leave to withdraw as counsel, stating her belief that the issues raised on appeal

are frivolous. 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,

raising, without analysis or discussion, three issues: (1) the sentence imposed

exceeded the authorized statutory maximum; (2) the trial court’s “application of

the 21 U.S.C. § 841(b)(1)(C) exceeded the 4.9 grams authorized by statute;”

and (3) the trial court lacked jurisdiction to impose a sentence under § 841.

Aplt. Objection at 2. Defendant later filed an untimely reply brief elaborating on




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two of these issues and raising for the first time a new issue, that 21 U.S.C. §

841(b) is unconstitutional.

      Pursuant to our duty under   Anders , 386 U.S. at 744, we have conducted an

independent review of defendant’s sentence and we agree that the appeal is

frivolous. The United States correctly argues that defendant waived his statutory

right to appeal by knowingly and voluntarily waiving that right in his plea

agreement. The plea agreement provides in relevant part that defendant waives

any right to appeal so long as the sentence imposed is within or below the

applicable guideline range. Defendant’s waiver of his right to appeal does not

apply to appeals or challenges based on changes in the law reflected in this

Circuit or Supreme Court cases decided after the date of the plea agreement which

are held by this Circuit or the Supreme Court to have retroactive effect.

      [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) (quotation and citations omitted).

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

agreement waiving his appellate rights knowingly and voluntarily, and, indeed,

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

that his plea was unknowing. The sentence imposed was within the applicable

guideline range and the district court did not exceed the statutory maximum

sentence. Further, none of the issues raised by defendant are based on changes

in the law made retroactive by this court or the Supreme Court after the date of

the plea agreement.

      Accordingly, the appeal waiver is valid and this appeal falls within its plain

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

the appeal.


                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Chief Judge




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