                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 2, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 07-4050
 v.                                              (D.C. No. 1:05-CR-105-TC)
                                                         (D. Utah)
 ALFONSO LOPEZ-BARONE,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


      Alfonso Lopez-Barone, a citizen of Mexico, pled guilty to charges that he

possessed a firearm as an alien illegally present in the United States, and

possessed a firearm in furtherance of a drug trafficking crime. In a brief filed

pursuant to Anders v. California, 386 U.S. 738 (1967), Lopez-Barone’s counsel

moves for leave to withdraw and raises the sole issue of whether Lopez-Barone’s

waiver of the right to appeal his sentence is enforceable. Based on our



      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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. 32.1.
independent review of the record, we also consider whether the district court

properly denied Lopez-Barone’s attempt to withdraw his guilty plea. We

AFFIRM Lopez-Barone’s conviction and sentence, DISMISS the appeal, and

GRANT counsel’s motion to withdraw.

                                          I

      In July 2007, Lopez-Barone and a friend provided undercover officers with

one quarter pound of methamphetamine in exchange for four firearms and $2,000

in cash. Following his arrest, a federal grand jury indicted Lopez-Barone on three

counts: (1) possession of methamphetamine with intent to distribute in violation

of 21 U.S.C. § 841(a)(1) (Count One); (2) possession of a firearm by an alien

illegally present in the United States in violation of 18 U.S.C. § 922(g)(5)(A)

(Count Two); and (3) possession of a firearm in furtherance of a drug trafficking

crime in violation of § 924(c)(1) (Count Three). Although he initially pled not

guilty to all three counts, Lopez-Barone later agreed to plead guilty to the latter

two counts in exchange for the government’s agreement to dismiss Count One.

As part of his plea agreement, Lopez-Barone waived the right to appeal his

sentence except in two circumstances: (1) if the sentence imposed was above the

maximum penalty provided in the statute of conviction; or (2) if the sentence was

above the high end of the applicable Guidelines range.

      On October 11, 2006, the district court held a change of plea hearing to

determine whether it should accept Lopez-Barone’s guilty plea. During that

                                         -2-
hearing, the district court engaged in an extensive Rule 11 plea colloquy, directly

addressing Lopez-Barone’s waiver of his right to appeal his sentence along with

every other aspect of his plea agreement, the elements of his crime, and the

consequences of a guilty plea. See Fed. R. Crim. P. 11(b). At the end of the

colloquy, the court accepted Lopez-Barone’s plea, specifically finding that

Lopez-Barone was entering the plea knowingly, intelligently, and voluntarily.

      At his sentencing hearing several months later, however, Lopez-Barone

informed his counsel that he wished to withdraw his guilty plea. Counsel relayed

this request to the district court, and the court halted the sentencing hearing. It

then granted Lopez-Barone three weeks in which to file a motion to withdraw his

plea. Lopez-Barone did not file such a motion and the court subsequently

rescheduled the case for sentencing. 1

      Lopez-Barone again attempted to withdraw his plea at the opening of the

rescheduled sentencing hearing. Acting independently of his attorney, he

provided the court with a letter in which he asserted that he was not guilty of the

charged offenses. His counsel denied having read the letter, stating, “I

anticipated it was something negative against me, so I didn’t push the issue.” In

response to the court’s questioning about the letter, Lopez-Barone claimed that he

admitted the truth of the charges against him only “because I was told that that

      1
        At some point between the two hearings, Lopez-Barone’s counsel moved
for permission to withdraw. Counsel later withdrew that motion after Lopez-
Barone agreed to proceed with sentencing.

                                         -3-
was a requirement to have my guilty plea accepted, and it was a way to not go to

trial,” which he wished to avoid.

      In response, the court questioned Lopez-Barone and his counsel to confirm

that Lopez-Barone had been fully informed and aware of the consequences of his

plea, and had not been encouraged or coerced to plead guilty. The court

concluded, “It seems to me then that [Lopez-Barone] knowingly entered the plea

and what he’s getting now is an understandable reaction to the severity of the

offense.” Finding that Lopez-Barone had specifically admitted guilt in the prior

hearing, the district court rejected his attempt to withdraw his plea, and proceeded

to sentence him.

      Lopez-Barone’s presentence report (“PSR”) calculated a criminal history

category of I because he had no prior criminal record. For Count Two, the PSR

calculated a base offense level of 20, and applied a three-level reduction for

acceptance of responsibility, for a final offense level of 17. The resulting

Guidelines sentencing range was 24-30 months’ imprisonment. For Count Three,

the PSR noted a statutory minimum sentence, and an equivalent advisory

Guidelines sentence, of 60 months’ imprisonment consecutive to any other

sentence imposed. See 18 U.S.C. § 924(c)(1)(A)(i) & (D)(ii); U.S.S.G.

§ 2K2.4(b). Adopting the PSR’s calculations, the district judge sentenced Lopez-

Barone to 24 months on Count Two and 60 months on Count Three, to be served




                                        -4-
consecutively, for a total sentence of 84 months in prison. This timely appeal

followed.

                                          II

      If an attorney conscientiously examines a client’s case and determines that

any appeal would be wholly frivolous, counsel may “so advise the court and

request permission to withdraw.” Anders, 386 U.S. at 744. Counsel must submit

a brief to both the appellate court and the client, pointing to anything in the

record that would potentially present an appealable issue. Id. The court must

also examine the record for any meritorious issues. Id. If the court determines

that the appeal is frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal. Id.

      Counsel provided Lopez-Barone with a copy of the Anders brief, but

Lopez-Barone declined the opportunity to file a pro se brief in response.

Counsel’s brief raises only one arguably appealable issue: whether Lopez-

Barone’s waiver of his appellate rights is enforceable. Upon independent

examination of the record, we identify an antecedent issue: whether the district

court abused its discretion when it refused Lopez-Barone’s attempt to withdraw

his plea during his second sentencing hearing.

                                          A

      In reviewing the district court’s decision to deny Lopez-Barone’s attempt to

withdraw his plea, we note that although in his plea agreement with the

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government Lopez-Barone waived the right to appeal his sentence, he did not

waive his right to appeal his conviction. See United States v. Elliot, 264 F.3d

1171, 1174 (10th Cir. 2001) (“[A]n appeal of a denial of a motion to withdraw a

guilty plea is an attempt to contest a conviction on appeal.” (emphasis added,

quotation omitted)).

      Federal Rule of Criminal Procedure 11(d)(2)(B) provides: “A defendant

may withdraw a plea of guilty . . . after the court accepts the plea, but before it

imposes sentence if . . . the defendant can show a fair and just reason for

requesting the withdrawal.” In evaluating whether a fair and just reason exists, a

district court must consider:

      (1) whether the defendant has asserted his innocence; (2) whether the
      government will be prejudiced if the motion is granted; (3) whether
      the defendant has delayed in filing the motion; (4) the inconvenience
      to the court if the motion is granted; (5) the quality of the
      defendant’s assistance of counsel; (6) whether the plea was knowing
      and voluntary; [and] (7) whether the granting of the motion would
      cause a waste of judicial resources.

United States v. Black, 201 F.3d 1296, 1299-1300 (10th Cir. 2000) (citation

omitted). “We review the district court’s denial of a motion to withdraw a guilty

plea for an abuse of discretion.” United States v. Jones, 168 F.3d 1217, 1219

(10th Cir. 1999).




                                          -6-
      Although Lopez-Barone has claimed innocence, 2 a factor which weighs in

favor of allowing withdrawal, other factors bear strongly against him. Despite the

district court’s decision to adjourn the initially scheduled sentencing hearing and

grant Lopez-Barone three weeks in which to file a motion to withdraw, he failed

to do so within the prescribed period. He then sought to raise the issue again at

the rescheduled sentencing hearing. Thus, Black’s factors of delay, waste of

judicial resources, and inconvenience to the court militate against permitting

withdrawal of the plea.

      We are confident that Lopez-Barone’s plea was entered voluntarily and

intelligently. “When determining whether a waiver of appellate rights is knowing

and voluntary, we especially look to . . . whether the language of the plea

agreement states that the defendant entered the agreement knowingly and

voluntarily . . . [and] for an adequate Federal Rule of Criminal Procedure 11

colloquy.” United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en

banc). Lopez-Barone’s plea agreement contains such a statement, and our review

of his colloquy reveals that it was more than adequate under Rule 11.

      To the extent that Lopez-Barone also asserted ineffective assistance of

counsel as a basis for his attempted withdrawal, such claims generally must be

      2
       Lopez-Barone claimed in his letter to the court that he was unaware of the
presence of a gun during the incident leading to his indictment. Knowledge is an
element of possession under both 18 U.S.C. § 922(g) and § 924(c). See, e.g.,
United States v. Jameson, 478 F.3d 1204, 1208-09 (10th Cir. 2007); United States
v. McKissick, 204 F.3d 1282, 1292 (10th Cir. 2000).

                                        -7-
presented in collateral proceedings and are “presumptively dismissible” on direct

appeal. United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en

banc); see also United States v. Samuel, 493 F.3d 1187, 1193 (10th Cir. 2007)

(holding that even a claim of ineffective assistance arising as one element of a

“fair and just” reason to allow withdrawal of a guilty plea must be evaluated on

collateral review). We will consider such a claim on direct appeal only in the

“rare” case where a fully developed factual record on the issue of ineffectiveness

is already before this court. Galloway, 56 F.3d at 1240-41. In this case, the facts

surrounding a potential claim of ineffective assistance have not been fully

developed. Any ineffectiveness claim should therefore be pursued by means of a

28 U.S.C. § 2255 motion in the district court. 3

      Because we are unable to consider the ineffective assistance factor on

direct review, we leave for collateral review the final determination of whether

the district court abused its discretion in denying Lopez-Barone’s attempt to

withdraw his plea. See, e.g., United States v. Robertson, 45 F.3d 1423, 1435

(10th Cir. 1995). The balance between the remaining factors supports the district

court’s conclusion that the plea should stand.

                                          B

      3
        Although Lopez-Barone’s plea agreement waives his right to bring a
motion for collateral review under § 2255, we do not allow waiver of the right to
collaterally challenge the validity of a plea based on claimed ineffective
assistance of counsel. See United States v. Cockerham, 237 F.3d 1179, 1187
(10th Cir. 2001).

                                         -8-
      This leaves the enforceability of Lopez-Barone’s waiver of the right to

appeal his sentence, the issue raised in counsel’s Anders brief. A waiver of

appellate rights is enforceable if (1) the issue appealed falls within the scope of

the waiver; (2) the defendant knowingly and voluntarily waived his appellate

rights; and (3) enforcement would not result in a miscarriage of justice. Hahn,

359 F.3d at 1325. We have already concluded that his waiver was knowing and

voluntary, and further conclude that the waiver clearly bars any challenge Lopez-

Barone might raise to the sentence imposed by the district court.

      The plea agreement allows appeal of the sentence if it is (1) above the

statutory maximum sentence, or (2) above the high end of the applicable

Guidelines range. Lopez-Barone’s sentence of 84 months’ imprisonment does not

fall within either of these exceptions. Given that the maximum penalty for

violating 18 U.S.C. § 922(g) is five years’ imprisonment, Lopez-Barone’s

sentence of 24 months (two years) on Count Two falls below this maximum. See

§ 924(a)(1). As to Count Three, there is no maximum penalty for an offense

under § 924(c)(1), thus a sentence of 60 months’ (five years’) imprisonment on

this count does not violate any statutory maximum. Moreover, the district court

sentenced Lopez-Barone to the bottom of the applicable Guidelines range, not

above it.

      Although counsel did not raise this argument, Lopez-Barone could

colorably claim that his plea agreement preserves his right to appeal an

                                         -9-
unreasonable within-Guidelines sentence. 4 We do not address this possibility,

however, because we conclude that Lopez-Barone’s sentence is not unreasonable.

Under United States v. Kristl, 437 F.3d 1050 (10th Cir. 2006), Lopez-Barone’s

sentence was both procedurally and substantively reasonable. There was no error

in the district court’s Guidelines calculation; the court offered an explanation for

its sentence which was firmly grounded in the 18 U.S.C. § 3553(a) sentencing

factors; and there are no additional § 3553(a) factors appearing in the record

which would suggest that this within-Guidelines sentence is substantively

unreasonable. Id. at 1054-55. Accordingly, any appeal of the sentence imposed

would be within the scope of Lopez-Barone’s waiver of appellate rights.

      Finally, enforcement of Lopez-Barone’s plea agreement would not result in

a miscarriage of justice. Such a miscarriage occurs only “(1) where the district

court relied on an impermissible factor such as race, (2) where ineffective

assistance of counsel in connection with the negotiation of the waiver renders the

waiver invalid, (3) where the sentence exceeds the statutory maximum, or (4)

where the waiver is otherwise unlawful.” Hahn, 359 F.3d at 1327 (citation


      4
          Paragraph 8 of the agreement states: “I know I may appeal the sentence
imposed upon me [if] in light of the factors listed in 18 U.S.C. § 3553(a), the
sentence is unreasonable.” Paragraph 10, however, states: “I knowingly,
voluntarily and expressly waive my right to appeal any sentence imposed upon me
. . . on any ground whatever, except” a sentence above the Guidelines range or a
statutory maximum. But see United States v. Wilken, 498 F.3d 1160, 1167 (10th
Cir. 2007) (assuming that the “express waiver” provision of a similar plea
agreement controlled over a provision identical to Paragraph 8).

                                        - 10 -
omitted). We find no suggestion in the record that the court relied on an

impermissible consideration, or that any feature of Lopez-Barone’s waiver was

unlawful. Nor does his sentence exceed a statutory maximum. Any claim of

ineffective assistance of counsel must be raised on collateral review.

                                         III

      Because Lopez-Barone fails to present us with any meritorious grounds for

this appeal, we AFFIRM his conviction and sentence, DISMISS the appeal, and

GRANT counsel’s motion to withdraw.


                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




                                        - 11 -
