                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-3280
                                    ___________

United States of America,            *
                                     *
             Appellee,               *
                                     *
      v.                             * Appeal from the United States
                                     * District Court for the
Floriberto Estrada-Bahena, also      * District of North Dakota.
known as Heriberto Estrada-Bahena,   *
                                     * [Published]
             Appellant.              *
                                ___________

                            Submitted: January 18, 2000
                                Filed: January 27, 2000
                                    ___________

Before LOKEN, BRIGHT, and HANSEN, Circuit Judges.
                            ___________

PER CURIAM.

       Floriberto Estrada-Bahena challenges the sentence imposed by the district court1
after he pleaded guilty to being found in the United States without the Attorney
General’s consent, after having been convicted of an aggravated felony and deported,
in violation of 8 U.S.C. § 1326(a) and (b)(2). His counsel has filed a brief and moved
to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). Although we



      1
       The Honorable Rodney S. Webb, Chief Judge, United States District Court for
the District of North Dakota.
granted Estrada-Bahena permission to file a pro se supplemental brief, he has not done
so.

       As part of his plea agreement, Estrada-Bahena waived his right to appeal his
sentence unless the district court departed upward from the Guidelines range. We
conclude that this waiver was knowing and voluntary because, among other things,
Estrada-Bahena was assisted by counsel and an interpreter at the change-of-plea and
sentencing hearings; the court questioned him about the appeal waiver at the
change-of-plea hearing, verifying that he understood he was waiving his right to appeal
as part of the plea bargain, that he had reviewed the agreement with his counsel with
the assistance of an interpreter, and that he wanted the court to adopt the agreement;
the court reminded him of the appeal waiver again at sentencing; and the plea
agreement and the presentence report advised him of a maximum possible sentence
well in excess of that which he ultimately received. See United States v. Michelsen,
141 F.3d 867, 871-72 (8th Cir.) (appeal waiver is enforceable so long as it resulted
from knowing and voluntary decision; examining personal characteristics of defendant
and circumstances surrounding plea agreement when assessing knowledge and
voluntariness of waiver), cert. denied, 119 S. Ct. 363 (1998); United States v. Greger,
98 F.3d 1080, 1081-82 (8th Cir. 1996) (so long as sentence is not in conflict with
negotiated plea agreement, knowing and voluntary waiver of right to appeal from
sentence will be enforced; appeal waiver was valid where it was included in plea
agreement, it was discussed at change-of-plea hearing, court imposed sentence without
objection from defendant, and court reviewed appeal waiver at sentencing).

      Accordingly, because Estrada-Bahena’s sentence was not an upward departure
from the Guidelines range, we now specifically enforce his promise not to appeal by
dismissing his appeal. See United States v. Williams, 160 F.3d 450, 452 (8th Cir.
1998) (per curiam). We also grant his counsel’s motion to withdraw.




                                          -2-
BRIGHT, Circuit Judge, concurring separately.

      I concur in the result that the appellant is entitled to no relief on his appeal. On
the merits, Estrada-Bahena shows no violation of his constitutional rights in the
imposition of his sentence.

       I disagree that the waiver of appeal should apply here. The appellant claims his
counsel provided him ineffective assistance. While we do not decide that claim, the
assertion and evidence in the file suggests that the waiver of an appeal should not apply
here. In these circumstances, we should consider the appeal on its merits. However,
since Estrada-Bahena cannot succeed on his appeal in any event, I concur in the result.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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