                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          MAR 4 2004

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 03-5031
 v.                                               (D.C. No. 02-CR-72-P)
                                                       (N.D. Okla.)
 MICHAEL JEFFREY MORRIS,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


      In February 2003, Michael Jeffrey Morris filed a notice of appeal from his

convictions for bank fraud and wire fraud. His counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), and moved for leave to withdraw as

counsel. The government responded by arguing that Mr. Morris waived his right

      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
to direct appeal in his plea agreement. For the reasons set out below, we grant

counsel’s motion to withdraw and dismiss the appeal.

      In paragraph A(2)(b) of his plea agreement, Mr. Morris expressly waived

his right to appeal his conviction “except if he receives a sentence above the

statutory maximum, or if the sentencing court departs from the applicable

sentencing guideline range, or for issues which are not addressed in the pre-

sentence report or the objections timely filed thereto by the defendant.” Rec., vol.

I, doc. 28 at 4. None of those conditions were met. The district court sentenced

Mr. Morris to sixty-three months total imprisonment to be followed by five years

of supervised release, and restitution in the amount of $1,681,199.19, an amount

specifically recognized in the plea agreement as permissible. The sentence was

not above the statutory maximum or applicable sentencing range, and there were

no objections or other issues raised by the government or the defendant. 1 Id., vol.

VI at 2. There is no evidence, and neither party contends, that Mr. Morris’ plea

agreement or colloquy was in any way unknowing or involuntary, or that the plea

agreement was in any way unlawful. Therefore, Mr. Morris’ waiver of his right

to direct appeal is valid and will be enforced by this court. See United States v.


      1
        The maximum statutory sentence for bank fraud is thirty years. See 18
U.S.C. § 1344(1). The appropriate sentencing range for Mr. Morris was 51-63
months based on his total offense level of 17 and criminal history category VI.
See U.S. S ENTENCING G UIDELINES M ANUAL § 2F1.1; ch. 5, pt. A (sentencing
table) (1998).

                                         -2-
Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1998) (“This court will hold a

defendant to the terms of a lawful plea agreement.”); United States v. Hernandez,

134 F.3d 1435, 1437 (10th Cir. 1998) (“A defendant’s knowing and voluntary

waiver of the statutory right to appeal his sentence is generally enforceable.”).

Accordingly, we GRANT counsel’s request to withdraw and DISMISS the

appeal.

                                               ENTERED FOR THE COURT

                                               Stephanie K. Seymour
                                               Circuit Judge




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