                                                                               F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                NOV 3 2000
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                          No. 00-3073
 LORENZO F. MARTINEZ, aka Jesse,                      (D.C. No. 98-CR-40066-2)
 aka Pedro Rivera,                                            (D. Kan.)

          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before BALDOCK, HENRY, and LUCERO, Circuit Judges.**


      Pursuant to a plea agreement, Defendant pled guilty to four counts of possession

with intent to distribute a mixture or substance containing a detectable amount of cocaine

in violation of 21 U.S.C. § 841(a)(1). Defendant subsequently filed a motion requesting

that his sentences in this case run concurrently with an undischarged 57 month sentence


      *
          This order and judgment is not binding precedent, except under the doctrines of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.
      **
         After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). The case is therefore
ordered submitted without oral argument.
for aggravated reentry after deportation. The district court sentenced Defendant to 46

months imprisonment on each count to run concurrently. The district court, however,

denied Defendant’s motion and imposed the instant sentences consecutive to the

undischarged 57 month sentence. Defendant appeals.

       The Government argues Defendant’s waiver of his right to appeal precludes this

challenge. The written plea agreement contains the following waiver:

       4. Defendant freely, voluntarily, knowingly and intentionally waives any
       right to appeal or collaterally attack any matter in connection with this
       prosecution and sentence.
               A. The defendant is aware that 18 U.S.C. § 3742 affords a defendant
               the right to appeal the sentence imposed. Acknowledging that, the
               defendant knowingly waives the right to appeal any sentence within
               the guideline range applicable to the statute of conviction as
               determined by the court after resolution of any objections by either
               party to the Presentence Report to be prepared in this case, and the
               defendant specifically agrees not to appeal the determination of the
               court in resolving any contested sentencing factor. In other words,
               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.

Aplee’s Supp. App. Vol I at 11.

       “A defendant’s knowing and voluntary waiver of the statutory right to appeal his

sentence is generally enforceable.” United States v. Rubio, 2000 WL 1629986, *2,

__ F.3d __, __ (10th Cir. 2000) (quoting United States v. Black, 201 F.3d 1296, 1300

(10th Cir. 2000)). Nothing in the record suggests Defendant did not knowingly and

voluntarily agree to the waiver contained in his plea agreement. In the written petition to


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enter a guilty plea, Defendant states that he entered his guilty plea “freely and

voluntarily.” Defendant does not contest the appropriateness of the 46 month sentences

and does not attack the validity of the plea agreement. Instead, despite expressly waiving

his right to appeal, Defendant now argues the district court erroneously imposed his

sentences in this case consecutive to his undischarged sentence. Under the plain terms of

the plea agreement signed by Defendant and his attorney, however, Defendant clearly

waived his right to appeal the sentence imposed. Because we conclude Defendant

knowingly and voluntarily waived his right to appeal, we lack jurisdiction over this

appeal. See Rubio, __ F.3d at __. Therefore, the appeal is

       DISMISSED.

                                           Entered for the Court,



                                           Bobby R. Baldock
                                           Circuit Judge
,




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