                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 31, 2008
                    UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-8040
          v.                                            (D. Wyoming)
 ESTEBAN PARRA,                                  (D.C. No. 04-CR-219-CAB)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this court 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, Estaban Parra was charged in a one-count indictment with

possession with intent to distribute 100 kilograms or more of marijuana, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). Parra filed a motion to suppress


      *
        This order and judgment is not binding precedent except under the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.
evidence obtained during a road-side search of his vehicle. The district court

denied the motion and Parra thereafter entered into a plea agreement with the

Government, agreeing to plead guilty to the violation charged in the indictment.

Parra was resentenced 1 on April 25, 2007, to sixty months’ imprisonment,

followed by four years of supervised release. Parra filed a timely Notice of

Appeal and his counsel, Lori Brand, filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), moving to withdraw as counsel. For the reasons set forth

below, we agree with Ms. Brand that the record in this case provides no

nonfrivolous basis for an appeal, and we therefore grant counsel’s motion to

withdraw and dismiss this appeal.

      On October 23, 2004, Parra was pulled over by Wyoming Highway Patrol

Trooper Benjamin Peech for failing to use his turn signal when changing lanes.

Peech questioned Parra about his travel plans and asked whether he was carrying

a commercial load in his rented truck. Parra denied that he was transporting a

commercial load. After Peech returned Parra’s documents, Parra consented to a

search of the truck. As Peech attempted to unlock the truck, Parra admitted that

he was carrying a commercial load of peppers. During their subsequent search of

      1
        Parra was originally sentenced on April 25, 2005, and he did not file a
direct appeal. He did, however, file a timely motion pursuant to 28 U.S.C.
§ 2255, alleging his trial counsel was constitutionally ineffective for failing to file
a notice of appeal. The district court granted the § 2255 motion, vacated Parra’s
sentence, resentenced him to the same sixty-month term of imprisonment, and
appointed new counsel. Parra’s new attorney filed the notice of appeal that led to
the matter currently before this court.

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the truck, officers discovered 53 bricks of marijuana weighing approximately 990

pounds (450 kilograms), including the packaging. The record does not indicate

how much the marijuana weighed without the packaging.

      Parra was charged by indictment with possession with intent to distribute

100 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B). The district court denied his motion to suppress the evidence obtained

during the search of his vehicle. Parra then pleaded guilty pursuant to the terms

of an unconditional plea agreement. The district court accepted Parra’s guilty

plea after informing him of the constitutional rights and privileges he would

thereby waive and establishing the factual basis for the plea.

      The United States Probation Office then prepared a presentence report

(“PSR”) which calculated Parra’s criminal history as Category II and his total

offense level as twenty-five. Parra did not make any objections to the PSR. The

district court sentenced him to a five-year mandatory minimum sentence. See 21

U.S.C. § 841(b)(1)(B). Parra’s counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), advising this court that Parra’s appeal is wholly

frivolous. Accordingly, counsel has also filed a motion to withdraw. Under

Anders, counsel may “request permission to withdraw where counsel

conscientiously examines a case and determines that any appeal would be wholly

frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).

Counsel is required to submit a brief to both the defendant and this court

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indicating any potential appealable issues. Id. The defendant may then submit

additional arguments. “The [c]ourt must then conduct a full examination of the

record to determine whether defendant’s claims are wholly frivolous. If the court

concludes after such an examination that the appeal is frivolous, it may grant

counsel’s motion to withdraw and may dismiss the appeal.” Id. (citation omitted).

Parra’s counsel filed her Anders brief on August 31, 2007. Parra has not

submitted any additional arguments. Our conclusions, therefore, are based on

counsel’s Anders brief and our own review of the record.

      Parra’s guilty plea may be set aside on direct appeal if he did not enter into

it knowingly and voluntarily. See United States v. Asch, 207 F.3d 1238, 1242

(10th Cir. 2000). In her Anders brief, Parra’s counsel asserts there is no basis for

challenging Parra’s guilty plea. Having reviewed the record, we agree. During

the change of plea hearing, the district court carefully and extensively questioned

Parra about his plea and his understanding of its consequences. There is no basis

for an appellate claim that Parra’s plea was not entered knowingly and

voluntarily. Further, in the written plea agreement Parra did not preserve his

right to appeal the denial of his motion to suppress. Accordingly, he has waived

the right to raise all nonjurisdictional defenses on direct appeal and the denial of

his motion cannot form the basis of an appeal. See United States v. Davis, 900

F.2d 1524, 1525-26 (10th Cir. 1990).




                                          -4-
      The only other possible basis for an appeal must relate to Parra’s sentence.

The PSR calculated an advisory guidelines range of sixty-three to seventy-eight

months’ imprisonment based on a Criminal History of II and an offense level of

twenty-five. The district court, however, sentenced Parra to a sixty-month

mandatory minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(B)(vii) which

dictates such a sentence for possession of more than 100 kilograms of marijuana.

Although the record does not indicate how much the marijuana weighed without

its packaging, Parra stipulated in the written plea agreement that he possessed

between 400 and 700 kilograms. Accordingly, we agree with counsel that there is

no nonfrivolous basis upon which Parra could challenge his sentence.

      Our review of the record reveals no other claims arguable on their merits,

and we accordingly conclude that Parra’s appeal is wholly frivolous. Counsel’s

motion to withdraw is granted and this appeal is dismissed.

                                       ENTERED FOR THE COURT


                                       Michael R. Murphy
                                       Circuit Judge




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