                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                January 12, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 09-6136
 v.                                            (D.C. No. 5:05-CR-00250-F-1)
                                                       (W.D. Okla.)
 LARRY EVANS,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


      Larry Evans pled guilty to one count of possession with intent to distribute

marijuana, in violation of 21 U.S.C. § 841(a)(1), and was sentenced to 108

months’ imprisonment followed by 5 years of supervised release. As part of his

plea agreement, Mr. Evans waived the right to appeal his sentence if it fell within

the applicable Guidelines range. Nevertheless, Mr. Evans now does just that,

arguing that the district court improperly considered evidence of cocaine


      *
       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 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order and judgment is not binding precedent except under the doctrines of law of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.
possession when it calculated his sentence and that his trial counsel provided

constitutionally ineffective assistance. Mr. Evans’s appellate counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), advising us that he

discerns no colorable basis for the appeal, and seeking leave to withdraw.

Because our own review likewise reveals no colorable basis for an appeal in this

case, we grant the attorney’s motion to withdraw and dismiss this appeal.

                                       * * *

      In late 2005, Trooper John Terrell of the Oklahoma Highway Patrol pulled

over Larry Evans for twice failing to signal before changing lanes. After

receiving a warning citation from the officer, Mr. Evans consented to additional

questioning and later to a search of his vehicle. In that search, Trooper Terrell

found over 20 kilograms of cocaine and approximately 136 kilograms of

marijuana. The United States indicted Mr. Evans for cocaine and marijuana

possession and for traveling in interstate commerce in pursuit of an unlawful

activity. On the advice of court-appointed trial counsel, Mr. Evans agreed to

plead guilty to possession with intent to distribute marijuana, in exchange for

which the government agreed to withdraw the cocaine charge and the other count.

Mr. Evans also agreed to waive his right to appeal his conviction so long as his

sentence was not above the Guidelines range as selected by the district court. At

sentencing, the district court ruled that Mr. Evans was accountable for both the

marijuana and the cocaine in his possession. Based upon a resulting total offense

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level of 31 and a criminal history category of I, the Guidelines dictated a sentence

of 108 to 135 months in prison. The court sentenced Mr. Evans to 108 months,

the low end of the range.

                                       * * *

       The Supreme Court’s decision in Anders authorizes a defendant’s lawyer

to seek permission to withdraw from an appeal if, “after a conscientious

examination,” the lawyer finds the appeal “wholly frivolous.” 386 U.S. at 744.

Invoking Anders requires the lawyer to “submit a brief to the client and the

appellate court indicating any potential appealable issues based on the record.”

United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing Anders, 386

U.S. at 744). The client may then submit his own arguments for the court’s

consideration. Id. We must then “conduct a full examination of the record to

determine whether [the] defendant’s claims are wholly frivolous.” Id. If they

are, we may grant counsel’s motion to withdraw and dismiss the appeal. Id.

      In his Anders brief, Mr. Evans’s attorney argues that this appeal is wholly

frivolous because the district court properly considered evidence of cocaine

possession in calculating Mr. Evans’s sentence. In addition, the attorney argues

that two other potential bases for appeal — that Mr. Evans was denied access to

legal material during his pre-plea incarceration and that his trial counsel was

ineffective — are equally meritless. The government has filed a brief in support

of the attorney’s motion, yet the government argues that we need not reach the

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merits of the potential claims because Mr. Evans waived his right to appeal any

sentence within the applicable Guidelines range. Mr. Evans’s attorney also noted

the appellate waiver in his Anders brief, but did not rely upon it exclusively

because the government had not yet sought to enforce it. Mr. Evans filed a

motion on his own behalf, asserting as the non-frivolous bases for his appeal that

the district court wrongly attributed the cocaine to him at sentencing and that his

trial counsel was constitutionally ineffective. Because Mr. Evans is proceeding

pro se, we liberally construe his filings. See Van Deelen v. Johnson, 497 F.3d

1151, 1153 n.1 (10th Cir. 2007). Nonetheless, we agree with Mr. Evans’s

attorney and the government that the appeal waiver bars this appeal. We thus

have no reason to consider any of Mr. Evans’s potential arguments.

      Defendants are bound by the terms of knowingly and voluntarily accepted

plea agreements. United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir.

1998). This includes any waiver of the right to appeal. United States v. Hahn,

359 F.3d 1315 (10th Cir. 2004) (en banc). When presented with such a waiver,

we will enforce it as long as: (1) “the disputed appeal falls within the scope of

the waiver of appellate rights”; (2) “the defendant knowingly and voluntarily

waived his appellate rights”; and (3) “enforcing the waiver would [not] result in a

miscarriage of justice.” Id. at 1325. Although we will only enforce an appeal

waiver when the government invokes the waiver against the defendant, the

government’s brief amply satisfies that requirement here. See United States v.

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Clayton, 416 F.3d 1236, 1239 (10th Cir. 2005) (“Rule 27.2 . . . does not prevent

the government from seeking enforcement [of the appeal waiver] through . . . its

brief on the merits.”).

      In this case, we are bound to enforce Mr. Evans’s waiver of appeal. First,

Mr. Evans’s appeal fits comfortably within the scope of his waiver. Mr. Evans

primarily challenges the district court’s consideration of his cocaine possession in

determining the appropriate Guidelines range. As part of his plea agreement,

however, Mr. Evans agreed to the following waiver:

      [D]efendant in exchange for the promises and concessions made by
      the United States in this plea agreement, knowingly and voluntarily
      waives his right to . . . [a]ppeal or collaterally challenge his guilty
      plea, sentence and restitution imposed, and any other aspect of his
      conviction . . . .

Plea Agreement, R. Vol. I at 37-38. The only exceptions to this otherwise

comprehensive waiver were for a sentence not “within or below the advisory

guideline range determined by the Court to apply to this case.” Id. at 38. Mr.

Evans doesn’t satisfy that exception in light of the fact that the district court

selected a sentence within the applicable Guidelines range.

      Second, the record indicates that Mr. Evans knowingly and voluntarily

agreed to the guilty plea and the appellate waiver. At the plea hearing, the

district judge conducted a thorough inquiry in which Mr. Evans informed the

court that no one had forced him to plead guilty in any way, he was not under the

influence of any drugs or alcohol, he had not recently been treated for mental

                                          -5-
illness, he had received ample time to discuss the agreement with his attorney,

and he understood the consequences of his plea. R. Vol. III at 4-5, 9. Mr. Evans

also verbally agreed to all of the appellate waivers included in his plea agreement.

Id. at 12-15. And in the plea agreement itself, when asked to describe the

agreement as he understood it, Mr. Evans wrote in his own hand: “Both sides

waive most appeal rights.” R. Vol. I at 30.

       Third, we have no reason to believe that enforcement of Mr. Evans’s appeal

waiver would result in a miscarriage of justice. For example, there is no

suggestion of fraud or other misconduct by the government. Mr. Evans does

allege that his trial counsel was constitutionally ineffective. However, except in

extraordinary circumstances, claims of ineffective assistance of counsel “should

be brought in collateral proceedings rather than on direct appeal from a

conviction.” United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006);

accord United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc)

(“[Ineffective assistance] claims brought on direct appeal are presumptively

dismissible, and virtually all will be dismissed.”). “This rule applies even where

a defendant seeks to invalidate an appellate waiver based on ineffective assistance

of counsel,” United States v. Porter, 405 F.3d 1136, 1144 (10th Cir.2005), and the

record before us offers no indication why we should depart from the general rule

in this case.




                                        -6-
      Based on our review of the record, we agree with Mr. Evans’s attorney that

there is no colorable basis for appeal. Accordingly, we grant counsel’s motion to

withdraw and dismiss this appeal.



                                      ENTERED FOR THE COURT


                                      Neil M. Gorsuch
                                      Circuit Judge




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