                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 25 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 00-6424
                                                    (D.C. No. 99-CR-177-A)
    TOBY R. TRUSDALE,                                     (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, PORFILIO , Circuit Judge, and        BRORBY , Senior
Circuit Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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. 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.
      Defendant Toby R. Trusdale appeals from the district court’s entry of

judgment and the sentence imposed following acceptance of his guilty plea.

Defendant pled guilty to one count of possession with intent to distribute

methamphetamine in violation of 21 U.S.C. § 841(a)(1) and one count of

possession of a firearm in furtherance of a drug trafficking crime in violation of

18 U.S.C. § 924(c). He was sentenced to 240 months on the drug charge and 60

months on the firearm possession charge, to be served consecutively.

      On appeal, defendant argues that his plea to the firearm possession charge

was not supported by a sufficient factual basis. The government has filed a

motion to dismiss this appeal on the ground that, as a part of the plea agreement,

defendant waived his right to appeal unless his sentence was above the applicable

guideline range or changes in the controlling law having retroactive effect

occurred.

      We must first determine whether the plea agreement was valid as the

validity of a waiver–of–appeal provision hinges on the validity of the plea

agreement. United States v. Black , 201 F.3d 1296, 1299 (10th Cir. 2000).     A

“knowing and voluntary waiver of the statutory right to appeal his sentence is

generally enforceable.”   Id. at 1300 (quotation omitted). Thus, we will enforce

the waiver and dismiss the appeal when defendant does “not allege that he did not




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knowingly and voluntarily accept the appellate waiver” or that it was in any other

way unlawful. United States v. Elliott , 264 F.3d 1171, 1174-75 (10th Cir. 2001).

       “The longstanding test for determining the validity of a guilty plea is

‘whether the plea represents a voluntary and intelligent choice among the

alternative courses of action open to the defendant.’”     Hill v. Lockhart , 474

U.S. 52, 56 (1985) (quoting     North Carolina v. Alford , 400 U.S. 25, 31 (1970)).

       Defendant does not allege that his plea was involuntary either because he

did “not understand the nature of the constitutional protections” he waived or

because he so incompletely understood “the charge that his plea cannot stand as

an intelligent admission of guilt.”   Henderson v. Morgan , 426 U.S. 637, 645 n.13

(1976). Rather, in an attempt to avoid dismissal of his appeal based on waiver,

defendant, in his pro se brief, argues that he was under the influence of narcotic

pain medication and, thus, was unable to enter a knowing and voluntary plea. He

also contends that he entered the plea in an effort to obtain the surgery he

required due to gunshot wounds he suffered at the time of his arrest.

       The Summary of Facts (enumerating each right defendant was waiving and

indicating defendant’s understanding thereof) clearly shows that he was properly

advised of and understood his trial rights. This is not a situation where the

waiver of important federal rights is presumed based on a silent record.      See, e.g. ,

Boykin v. Alabama , 395 U.S. 238, 243 (1969).


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       Defendant’s conclusory statements that he was under the influence of

narcotic pain medication and, thus, was unable to enter a knowing and voluntary

plea are insufficient to overcome his sworn statements in open court during the

plea hearing that he was knowingly and voluntarily executing the guilty plea and

waiver of rights.

       [R]epresentations of the defendant . . . as well as any findings made
       by the judge accepting the plea, constitute a formidable barrier in any
       subsequent collateral proceedings. Solemn declarations in open court
       carry a strong presumption of verity. The subsequent presentation of
       conclusory allegations unsupported by specifics is subject to
       summary dismissal . . . .

Lasiter v. Thomas , 89 F.3d 699, 702 (10th Cir. 1996) (quotation omitted);         see also

Black , 201 F.3d at 1300 (defendant’s later allegation that a toothache was so

severe he could not voluntarily consent to the plea did not override his sworn

statement at plea hearing that he was not under the influence of drugs, his mind

was clear, and no circumstances were forcing him to plead guilty).

       Further, the fact that defendant entered the plea in an attempt to obtain

other benefits does not negate the voluntariness of that plea.      See, e.g. , id. ; Brady

v. United States , 397 U.S. 742, 757 (1970)        (voluntary plea “does not become

vulnerable” because plea rested on faulty premise).

       Concluding that defendant entered a voluntary and intelligent plea, we next

examine whether the waiver of appeal is enforceable. “If [the] waiver is

effective, we would certainly overreach our jurisdiction to entertain this appeal

                                             -4-
when the plea agreement deprived Defendant of the right to appeal.”    United

States v. Rubio , 231 F.3d 709, 711 (10th Cir. 2000). “To avoid dismissal of his

appeal, Defendant must show why we should not enforce the waiver provision of

the plea agreement.”   Id.

      Defendant contends his appeal should not be dismissed because a waiver of

appellate rights is not enforceable in appeals concerning the attempted withdrawal

of a guilty plea, sentences that exceed the statutory maximum, cases where the

plea agreement was silent in regard to the sentencing range, and other public

policy constraints. Defendant notes that his plea agreement did not state any drug

quantity and did not indicate the applicable guideline sentencing range.

Defendant concludes the trial court, therefore, had authority to impose any

sentence within the guideline maximum and to arbitrarily pick any guideline it

deemed appropriate thereby violating public policy.

      None of these speculative situations apply to defendant. Defendant did not

attempt to withdraw his guilty plea, his sentence was within the statutory

maximum, and the plea agreement set forth the sentencing range. Defendant

raised no objection to the guidelines applied by the court, nor does he allege here

that the court arbitrarily picked the guideline used.

      [A]greements waiving the right to appeal are subject to certain
      exceptions, including where the agreement was involuntary or
      unknowing, where the court relied on an impermissible factor such as
      race, or where the agreement is otherwise unlawful. In addition, a

                                          -5-
       waiver may not be used to preclude appellate review of a sentence
       that exceeds the statutory maximum[] or to deny review of a claim
       that the agreement was entered into with ineffective assistance of
       counsel.

United States v. Cockerham,     237 F.3d 1179, 1182 (10th Cir. 2001) (quotation

and citations omitted),   cert. denied , 122 S. Ct. 821 (2002).

       We conclude that defendant knowingly, intelligently, and voluntarily both

entered his guilty plea and accepted the waiver of appeal provision contained

therein. Thus, we enforce the waiver and DISMISS this appeal.



                                                       Entered for the Court



                                                       Wade Brorby
                                                       Senior Circuit Judge




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