                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             MAY 25 2004
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 03-1302
                                                            (D. Colo.)
 GABRIEL CRUZ-ORDUNA,                                (D.Ct. No. 02-CR-144-1)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
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.




      *
          This order and judgment is not binding precedent except under the doctrines of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.
      Appellant Gabriel Cruz-Orduna, a federal prisoner represented by counsel,

pled guilty to possession with intent to distribute, and aiding and abetting with

intent to distribute, more than 500 grams of cocaine, in violation of 18 U.S.C. § 2

and 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii)(II). The district court sentenced Mr.

Cruz-Orduna to forty-one months imprisonment. After Mr. Cruz-Orduna filed a

timely notice of appeal, his counsel filed an appeal brief, pursuant to Anders v.

California, 386 U.S. 738, 744 (1967), alleging that, in his opinion, no meritorious

appellate issues exist and requesting permission to withdraw as Mr. Cruz-

Orduna’s counsel. Although the holding in Anders entitles a defendant to raise

additional points in response to an Anders brief and such opportunity was given in

this case, Mr. Cruz-Orduna made no such filing. See id. We exercise jurisdiction

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm Mr. Cruz-

Orduna’s conviction and sentence.



                       I. Factual and Procedural Background

      The relevant facts follow. A federal immigration officer patrolling a

highway in southwestern Colorado spotted a white van with Nebraska plates,

traveling in the opposite direction, which accelerated when it spotted the officer’s

patrol car, and again when the officer made a U-turn in order to follow it. As the

officer’s patrol car approached, the van accelerated again, and then repeated a


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pattern of slowing and accelerating excessively for several minutes until the

officer activated the patrol car’s emergency lights and the van stopped. In

response to the officer’s identification of himself as an immigration officer and

request for identification, Mr. Cruz-Orduna admitted he was a Mexican citizen in

the United States illegally and gave the officer permission to search the van.

When the officer noticed an overstuffed suitcase in the van and asked to open it,

Mr. Cruz-Orduna gave him permission; the suitcase contained a large amount of

marijuana. After officers took Mr. Cruz-Orduna to a police station for further

questioning, he told them the van’s roof paneling contained a large cache of

cocaine, which officers ultimately seized and determined weighed in excess of

500 grams.



      Following his arrest, Mr. Cruz-Orduna pled guilty to possession with intent

to distribute, and aiding and abetting with intent to distribute, more than 500

grams of cocaine, in exchange for the government dropping a second count

related to his possession of approximately twenty-one pounds of marijuana.

Based on the conditions of the guilty plea, the probation officer’s

recommendations, and the government’s suggestions, the district court determined

Mr. Cruz-Orduna met the criteria for a two-level safety-valve adjustment to his

base offense level, pursuant to United States Sentencing Guidelines (U.S.S.G.)


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§§2D1.1(b)(6) and 5C1.2; awarded him a three-level reduction for acceptance of

responsibility under U.S.S.G. §3E1.1; and granted the government’s motion for a

downward departure under U.S.S.G. §5K1.1, based on assistance Mr. Cruz-

Orduna gave authorities investigating his and other drug trafficking offenses.

Based on the type and amount of drugs involved, the district court determined the

offense level at 28. Applying this and other Sentencing Guidelines, the district

court calculated Mr. Cruz-Orduna’s final sentencing guideline range at forty-six

to fifty-seven months imprisonment, reduced the Sentencing Guideline range by

ten percent pursuant to the government’s motion for downward departure, and

sentenced Mr. Cruz-Orduna to forty-one months imprisonment.



                                   II. Discussion

      On appeal, Mr. Cruz-Orduna’s counsel suggests a review of the record

reveals no grounds for challenging the traffic stop, the subsequent search of his

van or his statements at the police station, and that “[e]ven if there were, Mr.

Cruz-Orduna has waived them, since he entered an unconditional plea of guilty.”

(Apt. Br. at 3.) He further points out the district court based Mr. Cruz-Orduna’s

sentence on an accurate determination of the applicable drug quantity and offense

level, as well as the three favorable sentencing guideline rulings which reduced

Mr. Cruz-Orduna’s sentence below the applicable sentencing range.


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        After carefully reviewing the record, it is clear Mr. Cruz-Orduna’s plea

agreement preserved no issues for appeal and, therefore, is an unconditional plea.

In the absence of a conditional plea, a defendant, like Mr. Cruz-Orduna, who

pleads guilty “may not thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the entry of the guilty

plea,” and may only “attack the voluntary and intelligent character of the guilty

plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973). In this case, Mr. Cruz-

Orduna does not challenge the voluntary and intelligent character of his guilty

plea, and a review of his record on appeal presents no such issue. Thus, by

entering the plea agreement, Mr. Cruz-Orduna “waive[d] all non-jurisdictional

challenges to his conviction.” See United States v. Dwyer, 245 F.3d 1168, 1170

(10th Cir. 2001). Consequently, as his counsel points out, Mr. Cruz-Orduna

retains no basis for challenging the traffic stop, the subsequent search of his van,

his statements at the police station, or any other action taken prior to his guilty

plea.



        We next turn to whether any sentencing issues arise from Mr. Cruz-

Orduna’s appeal. When reviewing an application of the Sentencing Guidelines,

“[t]his court reviews the district court’s legal conclusions under the Sentencing

Guidelines de novo and its factual findings for clear error, affording great


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deference to the district court’s application of the Guidelines to the facts.”

United States v. Eaton, 260 F.3d 1232, 1237 (10th Cir. 2001). Under 18 U.S.C.

§ 3742(a), a sentence that falls within the Sentencing Guidelines cannot be

successfully appealed unless it is imposed in violation of law, as a result of an

incorrect application of the Guidelines, or is otherwise premised on facial

illegality, improper calculations, or clearly erroneous fact findings. See United

States v. Garcia, 919 F.2d 1478, 1479, 1481 (10th Cir. 1990) (relying on 18

U.S.C. § 3742(a)(1) and (2)).



      With these principles in mind and after a careful review of the record

concerning Mr. Cruz-Orduna’s sentence, we conclude the district court did not

impose Mr. Cruz-Orduna’s sentence in violation of law or as a result of an

incorrect application of the Sentencing Guidelines, or that his sentence is

otherwise improper under 18 U.S.C. § 3742. Clearly, Mr. Cruz-Orduna’s

sentence falls within the appropriate guideline range, and as his counsel points

out, he was afforded favorable reductions in his sentence of which he cannot

complain.



                                   III. Conclusion

      After a careful review of the record on appeal, we conclude no grounds for


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appeal exist. We grant counsel’s request to withdraw and AFFIRM Mr. Cruz-

Orduna’s conviction and sentence.



                                    Entered by the Court:

                                    WADE BRORBY
                                    United States Circuit Judge




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