                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       August 20, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                  No. 07-3097
                                                (D.C. No. 06-CR-20123-KHV)
    LEROY FONDREN JR.,                                    (D . Kan.)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before BR ISC OE, EBEL, and HA RTZ, Circuit Judges.




         Defendant Leroy Fondren Jr. pleaded guilty to one count of possessing with

intent to distribute 50 grams or more of “crack” cocaine in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(A )(iii), and one count of possessing a firearm in

furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c).

Pursuant to the plea agreement, M r. Fondren waived “any right to appeal a




*
      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 This order and judgment is not binding precedent, except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
sentence imposed which is within the guideline range determined appropriate by

the court. . . . In other words, the defendant waive[d] the right to appeal the

sentence imposed in this case except to the extent, if any, the court depart[ed]

upwards from the applicable sentencing guideline range determined by the court.”

M ot. to Enforce, Ex. 1 (Plea Agreement) at 7-8. Further, he waived “any right to

appeal or collaterally attack any matter in connection with this prosecution,

conviction and sentence.” Id. at 7. Both the 120-month sentence on the drug

charge and the five-year sentence on the firearm charge w ere the statutory

mandatory minimum sentence; both sentences were, therefore, within the

guideline range.

      M r. Fondren filed a notice of appeal challenging his sentence, and the

government has filed a motion to enforce the appeal waiver in the plea agreement,

seeking dismissal of the appeal. In response, M r. Fondren’s attorney filed an

Anders brief stating her belief that there are no meritorious grounds upon which

M r. Fondren can appeal his sentence or urge denial of the government’s motion to

enforce the appeal waiver, and she requested permission to withdraw as counsel.

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

request permission to w ithdraw where counsel conscientiously examines a case

and determines that an appeal would be wholly frivolous). This court gave

M r. Fondren an opportunity to file a pro se response to the motion to enforce, see

id., but to date, he has not responded.

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      Under Anders, we have conducted an independent review and examination

of the motion to enforce. See id. This court will enforce a criminal defendant’s

waiver of his right to appeal so long as the following three conditions are met:

(1) “the disputed appeal falls within the scope of the waiver of appellate rights,”

(2) the defendant’s waiver of his appellate rights was knowing and voluntary, and

(3) enforcing the waiver w ill not result in a miscarriage of justice. United States

v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). W e have

reviewed the plea agreement, the transcripts of the plea and sentencing hearings,

and the response from M r. Fondren’s counsel, and we conclude that the Hahn

factors have been satisfied.

      Accordingly, we GRANT the government’s motion to enforce the appeal

waiver in the plea agreement, GRANT counsel’s motion to withdraw, DENY the

motion to appoint counsel, and DISM ISS the appeal. The mandate shall issue

forthwith.


                                        ENTERED FOR THE COURT
                                        PER CURIAM




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