                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                        March 21, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                        No. 12-2207
                                                (D.C. No. 1:11-CR-01065-MV-2)
ACXEL BARRERA-MUNOZ,                                       (D. N.M.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, O’BRIEN and HOLMES, Circuit Judges.


      This matter is before the court on the government’s motion to enforce the

appeal waiver contained in defendant Acxel Barrera-Munoz’s plea agreement. The

defendant pleaded guilty to possession with intent to distribute five kilograms or

more of cocaine. His applicable advisory guideline sentencing range was 121 to




*
       This panel has determined 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is not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
151 months’ imprisonment, and he was sentenced below this range to the minimum

mandatory sentence of 120 months’ imprisonment.

      Pursuant to his plea agreement, the defendant waived “the right to appeal [his]

conviction(s) and any sentence and fine within or below the applicable advisory

guideline range as determined by the Court.” Attach. 1 to Mot. to Enforce (Plea

Agreement) at 8. The government filed a motion to enforce the plea agreement under

United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). In

response, the defendant’s counsel filed a motion to withdraw and an Anders brief.

See Anders v. California, 386 U.S. 738, 744 (1967) (authorizing counsel to request

permission to withdraw where counsel conscientiously examines case and determines

that appeal would be wholly frivolous). Counsel states that the only arguable

nonfrivolous issue presented in the record is ineffective assistance of trial counsel,

but counsel acknowledges those arguments should be raised in a collateral

proceeding under 28 U.S.C. § 2255, rather than on direct appeal. See United States v.

Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995) (recognizing that, with rare

exceptions, “claims of constitutionally ineffective counsel should be brought on

collateral review”). This court gave the defendant an opportunity to file a pro se

response to the motion to enforce. See Anders, 386 U.S. at 744. The deadline has

passed and, to date, the defendant has not filed a response.

      Under Anders, we have reviewed the motion and the record and we conclude

that the requirements for enforcing the plea waiver have been satisfied. See Hahn,


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359 F.3d at 1325 (describing the factors this court considers when determining

whether to enforce a waiver of appellate rights). Accordingly, we grant the motion to

enforce the appeal waiver, grant counsel’s motion to withdraw, and dismiss the

appeal.

                                              Entered for the Court
                                              Per Curiam




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