                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 14, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-8022
 v.                                          (D.Ct. No. 2:07-CR-00200-WFD-4)
                                                          (D. Wyo.)
 RICHARD AVERY,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.



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

unanimously that oral argument would not materially assist in 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.



      Appellant Richard Avery pled guilty to one count of conspiracy to possess

with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1)

      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
and (b)(1)(A) and § 846, and one count of possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The

district court sentenced Mr. Avery to 168 months imprisonment and five years

supervised release. Although Mr. Avery appeals his conviction and sentence, his

attorney has filed an Anders brief and motion to withdraw as counsel. See Anders

v. California, 386 U.S. 738, 744 (1967). For the reasons set forth hereafter, we

grant counsel’s motion to withdraw and dismiss this appeal. Id.



                                  I. Background

      On July 18, 2007, an indictment issued against Mr. Avery in connection

with a conspiracy to distribute methamphetamine conducted in Rock Springs,

Wyoming, during the period between January 2005 and June 2006. Information

from an investigation into the conspiracy established Mr. Avery purchased pound

quantities of methamphetamine from another individual, and Mr. Avery later

admitted to first purchasing small quantities and eventually one pound of

methamphetamine a week for a period of nine months.



      Following his arrest, Mr. Avery pled guilty to one count of conspiracy to

possess with intent to distribute methamphetamine and one count of possession

with intent to distribute methamphetamine. As part of his plea, Mr. Avery

admitted he re-sold the methamphetamine he purchased and stipulated that his

                                        -2-
relevant conduct involved between 500 grams and 1.5 kilograms of

methamphetamine. In his plea agreement, Mr. Avery waived his right to appeal

his sentence and agreed to provide substantial assistance in the investigation or

prosecution of other persons who may have committed criminal offenses.



      During the Rule 11 colloquy at Mr. Avery’s plea hearing, the district court

questioned Mr. Avery about his guilty plea and informed him of his rights and

privileges under the Constitution and the laws of the United States. See Fed. R.

Crim. P. 11. Mr. Avery explicitly confirmed, in part, that he: (1) understood the

charges against him; (2) was satisfied with his counsel; (3) had read the plea

agreement, discussed it with counsel, and understood its terms; (4) understood the

rights he was waiving, including the waiver of his appeal rights; and (5)

understood the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”)

sentence explained to him was tentative and subject to change based on any

additional information obtained prior to sentencing.



      Following Mr. Avery’s guilty plea, a probation officer prepared a

presentence report calculating his sentence under the applicable Guidelines. The

probation officer calculated the base offense level at 36, under U.S.S.G.

§ 2D1.1(c)(2), based on the stipulated drug quantity of between 500 grams and

1.5 kilograms of methamphetamine. See U.S.S.G. § 2D1.1(c)(2) (Drug Quantity

                                         -3-
Tbl.). After decreasing the offense level by three levels for acceptance of

responsibility, the probation officer calculated a total offense level of 33, which,

together with a criminal history category of III, resulted in a recommended

Guidelines range of 168 to 210 months imprisonment. See U.S.S.G., Ch. 5, Pt. A

(Sent'g Tbl.). The probation officer also noted the minimum and maximum terms

of imprisonment were ten years and life.



      Mr. Avery did not object to the presentence report but filed a request for a

downward departure of five levels. First, he argued his criminal history category

of III was over-represented, based, in part, on the fact he did not have a criminal

record until six years prior when he received two drug-related convictions – one

involving misdemeanor possession of marijuana and the other involving

possession with intent to distribute methamphetamine, cocaine, and marijuana, for

which he alleged he was unfairly assessed additional points because he committed

the offense while on probation for the prior marijuana offense. Second, he argued

the government should have proffered a departure under U.S.S.G. § 5K.1 for

substantial assistance to the government, as contemplated in the plea agreement,

but, instead, the government refused to garner information from Mr. Avery which

he would have been willing to provide.



      At the sentencing hearing, Mr. Avery raised the same arguments for a

                                           -4-
downward departure based on both the alleged over-representation of his criminal

history and the government’s failure to use him as a cooperating witness and seek

a § 5K1.1 departure. The government responded to Mr. Avery’s § 5K.1

argument, pointing to his lack of credibility, inconsistent statements, and

obstruction issues, including an intercepted letter he attempted to send while

incarcerated in the instant case intended to “out” certain confidential informants,

as grounds for not using him as a cooperating witness for the purpose of such a

departure. It also argued his criminal history was not over-represented, given the

government declined to pursue certain sentencing enhancements, including an

enhancement regarding the amount of methamphetamine Mr. Avery initially

admitted to distributing, which was a pound a week for nine months, for a total of

thirty-six pounds.



      After hearing the parties’ arguments, the district court comprehensively

discussed the 18 U.S.C. § 3553(a) factors as they applied to Mr. Avery, including

his individual characteristics, criminal history, and the aggravating factor of the

correspondence on the confidential informants, which it found could have

endangered their lives. Based on its consideration of all the § 3553(a) factors, it

found nothing to justify a variance or departure under the applicable Guidelines

range and imposed a sentence at the low end of the sentencing range of 168

months imprisonment.

                                          -5-
      After Mr. Avery filed a timely notice of appeal, his appointed counsel filed

an Anders appeal brief explaining, after an examination of the record, he could

find no non-frivolous issues on appeal and seeking permission to withdraw as

counsel. See Anders, 386 U.S. at 744. Pursuant to Anders, this court gave Mr.

Avery an opportunity to respond to his counsel’s Anders brief, and, to date, we

have not received a response. Id.



                                    II. Discussion

      In the Anders brief, counsel points out: (1) Mr. Avery waived his right to

appeal; (2) his guilty plea was valid; (3) he received a sentence at the low end of

the properly-calculated Guidelines range; and (4) his sentence is otherwise

procedurally and substantively reasonable. In support of his argument, counsel

relies on the district court’s Rule 11 colloquy and its comprehensive application

and discussion of the Guidelines and § 3553(a) factors in denying a downward

departure and sentencing Mr. Avery.



      As required by Anders, we have conducted a full examination of the record

before us. See id. We note Mr. Avery’s waiver of appeal rights is contained in

his plea agreement, he agreed he understood he was waiving his appeal rights

when questioned on the subject by the district court, and at the sentencing hearing

                                         -6-
counsel for both parties confirmed Mr. Avery had waived those rights. On

appeal, Mr. Avery’s counsel represents such a waiver occurred, but the

government has not invoked a waiver provision on appeal. Instead, it has merely

filed a letter to this court giving notice of its intent not to file an answer brief and

agreeing with Mr. Avery’s counsel “there are no non-frivolous claims that could

fairly be raised to challenge either [Mr. Avery’s] conviction or sentence.” As a

result, we conclude the government has forfeited the opportunity to enforce Mr.

Avery’s appeal waiver. See United States v. Calderon, 428 F.3d 928, 930-31 (10 th

Cir. 2005).



      Turning to the merits of the appeal, the record demonstrates Mr. Avery pled

guilty to the offenses charged and stipulated to distributing methamphetamine in a

quantity between 500 grams and 1.5 kilograms. Because the district court

considered the applicable Guidelines and sentencing factors in sentencing Mr.

Avery at the low end of the presumptively reasonable advisory Guidelines range,

we have no reason to conclude his sentence is unreasonable, especially in light of

the fact that Mr. Avery has not offered any nonfrivolous reason warranting a

lower sentence. 1 Thus, we find no nonfrivolous basis for challenging the

      1
        We review a sentence for reasonableness, as guided by the factors in 18
U.S.C. § 3553(a). See United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir.
2006) (per curiam). We will set aside a sentence only if it is procedurally or
substantively unreasonable. See United States v. Hernandez, 509 F.3d 1290, 1297
                                                                     (continued...)

                                           -7-
conviction or sentence imposed. See Anders, 386 U.S. at 744.



                                  III. Conclusion

      For these reasons, no meritorious appellate issue exists. Accordingly, we

grant counsel’s motion to withdraw and DISMISS Mr. Avery’s appeal.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




      1
        (...continued)
(10th Cir. 2007). “A procedurally reasonable sentence reflects the sentencing
court’s calculation of the applicable advisory Guidelines range and its application
of the § 3553(a) factors,” while a substantively reasonable sentence reflects the
gravity of the crime and the § 3553(a) factors as applied to the case. Id. at 1297-
98. A presumption of reasonableness attaches to a sentence, like here, which is
within the correctly-calculated Guidelines range, unless sufficiently rebutted by
Mr. Avery. See Kristl, 437 F.3d at 1053-55. In making a reasonableness review,
we review the court’s findings of fact for clear error and its legal conclusions de
novo. See Hernandez, 509 F.3d at 1298.

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