                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                AUG 29 2003
                                  TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                     Clerk
 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,

 v.                                                           No. 02-2242
                                                        (D.C. No. CR-01-39 JC)
 MARIO JOSE MONTES-FELIX,                                  (D. New Mexico)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.


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

unanimously that oral argument would not materially assist 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.

       Defendant Mario Jose Montes-Felix appeals the sentence imposed following his

plea of guilty to one count of possession with intent to distribute 50 grams or more of



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and aiding and

abetting, in violation of 18 U.S.C. § 2. We dismiss the appeal for lack of jurisdiction.

       In his plea agreement, defendant waived the right to appeal his sentence if it was

within the applicable Guidelines range. At the plea hearing, the district court engaged the

defendant in a Rule 11 colloquy to ensure his plea was entered knowingly and voluntarily.

Defendant stated he understood that he was waiving the right to appeal his sentence if the

district court sentenced him within the Guidelines range. The presentence report found

that defendant was a leader and organizer in the underlying criminal offense and

recommended a four-level sentence enhancement pursuant to U.S.S.G. § 3B1.1(a).

Defendant objected, arguing there was insufficient evidence to find he was a leader or

organizer. The district court overruled defendant’s objection, adopted the

recommendation, and sentenced defendant to 210 months’ imprisonment, the low end of

the Guidelines range.

       On appeal, defendant contends “[t]he waiver provision [in his] plea agreement is

contrary to public policy, fundamentally unfair, unconscionable, and unenforceable,”

Aplt. Br. at 7, and that he did not knowingly and voluntarily waive his right to appeal the

four-level sentence enhancement “based on the government’s erroneous characterization

of him as a leader or organizer of the criminal activity.” Id. at 12.

       Defense counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738,

744 (1967) (permitting counsel who considers appeal to be wholly frivolous to advise


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court of that fact, request permission to withdraw from case, and submit brief referring to

portions of record that arguably support appeal). As required, a copy of the Anders brief

was provided to defendant. Pursuant to our duty under Anders, we have conducted an

independent review of the record.

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

sentence is generally enforceable.” United States v. Elliott, 264 F.3d 1171, 1173 (10th

Cir. 2001). “If Defendant’s waiver is effective, we would certainly overreach our

jurisdiction to entertain this appeal when the plea agreement deprived Defendant of the

right to appeal. We do, however, have jurisdiction to determine our jurisdiction.” United

States v. Rubio, 231 F.3d 709, 711 (10th Cir. 2000) (internal citations omitted).

       We reject defendant’s broad attack on the validity and enforceability of appellate

waivers. With certain exceptions not applicable here, we generally enforce such waivers.

See Elliott, 264 F.3d at 1173. Indeed, we have acknowledged that our circuit has been

“more deferential to . . . broad waiver-of-appeal provisions” in plea agreements than some

other courts. United States v. Black, 201 F.3d 1296, 1301 n.3 (10th Cir. 2000).

Moreover, having reviewed the transcript of the district court’s Rule 11 colloquy with

defendant, we conclude defendant entered his guilty plea knowingly and voluntarily.

Defendant argues he did not “knowingly and voluntarily waive[] the right to appeal the

legality of the four level increase in his sentence.” Aplt. Br. at 14. However, in the plea

agreement, defendant specifically agreed not to appeal the determination of the court in


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resolving any contested sentencing factor. We will hold defendant to the terms of his plea

agreement.

      We DISMISS defendant’s appeal for lack of jurisdiction. We grant counsel’s

motion to withdraw.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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