                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JAN 4 2002
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 00-6252
                                                           (W.D. Okla.)
 ROBERT EDWARD JONES, JR. a/k/a                      (D.Ct. No. CR-99-121-T)
 Poochie,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
ROGERS, ** District Judge.



      Robert Edward Jones, Jr. was originally indicted for several drug-related

offenses. Pursuant to a plea agreement with the government, Mr. Jones pled

guilty to one count of conspiracy to distribute cocaine base (crack), in violation of



      *
          This order and judgment is not binding precedent except under the doctrines of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.

      **
          The Honorable Richard D. Rogers, United States District Court Judge for the
District of Kansas, sitting by designation.
21 U.S.C. § 846. Mr. Jones appeals from the district court’s order denying his

motion to withdraw his guilty plea. He also claims the district court erred in

refusing to appoint substitute counsel before his sentencing. Finally, Mr. Jones

argues there was insufficient evidence of the drug amount attributed to him at

sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742. 1 We affirm in part and dismiss in part.


      1
          The government argues we do not have jurisdiction because Mr. Jones waived
his right to appeal in his plea agreement. However, plea agreement waivers of appeal do
not divest us of jurisdiction unless the review sought is subject to 18 U.S.C. § 3742(c).
We have jurisdiction over other appeals, pursuant to 28 U.S.C. § 1291, even when the
defendant waived his right to appeal in a plea agreement. If we determine the plea
agreement and the waiver of appeal were valid, we enforce the waiver and dismiss the
appeal pursuant to the terms of the waiver. United States v. Black, 201 F.3d 1296 (10th
Cir. 2000). We do not dismiss the appeal because we do not have jurisdiction. We
dismiss the appeal because we have jurisdiction to enforce the waiver.

       Although 18 U.S.C. § 3742(c) limits a defendant’s right to file a notice of appeal
under certain very limited circumstances, those circumstances are not present here. First,
the plea agreement did not include a specific sentence under Federal Rule of Criminal
Procedure 11(e)(1)(C). See 18 U.S.C. § 3742(c) (“In the case of a plea agreement that
includes a specific sentence under rule 11(e)(1)(C) of the Federal Rules of Criminal
Procedure – (1) a defendant may not file a notice of appeal under paragraph (3) or (4) of
subsection (a) unless the sentence imposed is greater than the sentence set forth in such
agreement.”). But see, United States v. Rubio, 231 F.3d 709, 711, 713 (10th Cir. 2000)
(holding, in case involving a plea agreement with a specific sentence pursuant to Fed. R.
Crim. P. 11(e)(1)(B), “we would certainly overreach our jurisdiction to entertain this
appeal when the plea agreement deprived Defendant of the right to appeal”) and United
States v. Friday, No. 00-6326, 2001 WL 1531200, at *1 (10th Cir. Dec. 4, 2001)
(unpublished opinion)). Second, Mr. Jones argues his plea was not knowing and
voluntary. See 18 U.S.C. § 3742(a)(1), (c)(1) (stating defendant not precluded from filing
notice of appeal if sentence “was imposed in violation of law”); United States v. Black,
201 F.3d 1296, 1300 (10th Cir. 2000). Finally, 18 U.S.C. § 3742 pertains only to
appellate review of a sentence. Mr. Jones’ appeal includes review of the district court’s

                                           -2-
      After receiving his presentence report and prior to sentencing, Mr. Jones

filed a motion to withdraw his guilty plea. At the hearing on the motion, he

argued he did not knowingly and voluntarily enter into the plea agreement. Mr.

Jones’ attorney also filed a motion to withdraw as counsel. After hearing from

Mr. Jones, his counsel and the prosecutor, the district court issued orders denying

both motions.



      At the outset, the government argues for dismissal of this appeal because

the plea agreement includes a waiver of Mr. Jones’ right to appeal. A knowing

and voluntary waiver of the statutory right to appeal is generally enforceable by

this court. United States v. Black, 201 F.3d 1296, 1300 (10th Cir. 2000).

However, Mr. Jones has consistently argued he did not knowingly and voluntarily

enter into the plea agreement, thereby challenging the validity of the plea

agreement.



      The validity of a waiver-of-appeal provision hinges on the validity of the

plea agreement. Id. at 1299. Therefore, we will consider the issues Mr. Jones

raised in the motion to withdraw his guilty plea and which he raises again on




order denying his motion to withdraw his guilty plea.


                                           -3-
appeal. Compare id. (reviewing the merits of a claim defendant did not

knowingly and voluntarily enter into plea agreement) with United States v. Elliott,

264 F.3d 1171, 1174-75 (10th Cir. 2001) (enforcing waiver and dismissing appeal

when defendant did “not allege that he did not knowingly and voluntarily accept

the appellate waiver”) and United States v. Atterberry, 144 F.3d 1299, 1300-01

(10th Cir. 1998) (dismissing appeal when defendant did “not contend his

agreement to the appeal waiver was unknowing or involuntary”).



      When a motion to withdraw a guilty plea is made before sentencing, the

district court may permit withdrawal of the plea for “any fair and just reason.”

Fed. R. Crim. P. 32(e). We review a district court’s order denying withdrawal of

a plea for an abuse of discretion. Black, 201 F.3d at 1300. Mr. Jones bears the

burden of demonstrating a “fair and just reason” for withdrawal of his plea.

Black, 201 F.3d at 1299. Mr. Jones argues he did not have sufficient time to

confer with his attorney regarding the plea agreement and consequently, did not

understand the agreement. He articulates two misconceptions: (1) he believed

the government’s agreement not to seek an enhancement pursuant to 21 U.S.C.

§ 851 precluded the use of prior convictions to enhance his sentence; and (2) he

believed he would be allowed to dispute the drug amounts in the plea agreement

at his sentencing hearing. The district court’s nine-page order denying the motion


                                         -4-
to withdraw the guilty plea carefully and properly analyzed the appropriate factors

articulated by our case law. 2 Therefore, we affirm the order denying the motion

to withdraw the guilty plea for substantially the same reasons articulated by the

district court.



       Next, Mr. Jones argues the district court should have allowed him to

substitute counsel before sentencing. We dismiss this argument because Mr.

Jones’ plea agreement waived his right to appeal. Although a waiver should not

be used “to deny review of a claim that the agreement was entered into with

ineffective assistance of counsel,” Black, 201 F.3d at 1301, Mr. Jones never

argued his counsel was ineffective. Mr. Jones merely sought substitute counsel.

See United States v.Mendoza-Salgado, 964 F.2d 993, 1015 (10th Cir.1992)

(quoting Wheat v. United States, 486 U.S. 153, 159 (1988)) (Sixth Amendment

guarantees an effective advocate, not the lawyer the defendant prefers).

Therefore, his claim does not raise public policy concerns which might preclude


       2
         In addition, the district court took measures to mitigate the effects of Mr. Jones’
claimed misunderstandings. The district court, out of fairness, refused to apply an
enhancement based on Mr. Jones’ prior criminal history. In addition, the district court
actually did permit Mr. Jones to dispute the drug amounts attributed to him in the plea
agreement. However, Mr. Jones stipulated to the drug quantity after one witness testified.
Therefore, any basis Mr. Jones may have had for withdrawing his plea evaporated at the
sentencing hearing when the district court addressed the prior conviction issue and Mr.
Jones stipulated to the drug quantity.


                                            -5-
us from enforcing the waiver. See id. The same holds true for Mr. Jones’

insufficient evidence claim. Because Mr. Jones entered into the plea agreement

knowingly and voluntarily and no public policy concerns constrain us from

enforcing the waiver of appeal, we dismiss his remaining claims. 3 Black, 201

F.3d at 1301, 1303.



       Accordingly, we AFFIRM the district court’s denial of Mr. Jones’ motion

to withdraw his guilty plea, and we DISMISS the remaining issues in his appeal.



                                          Entered by the Court:

                                          WADE BRORBY
                                          United States Circuit Judge




       3
          We could also affirm Mr. Jones’ conviction and sentence on the merits. “Only
when the trial court unreasonably or arbitrarily interferes with a defendant’s right to
counsel of choice do we agree a conviction cannot stand.” Mendoza-Salgado, 964 F.2d at
1016 (emphasis in original). The district court did not unreasonably or arbitrarily
interfere with Mr. Jones’ right to his choice of counsel. It carefully considered counsel’s
request to withdraw and properly applied the standards from United States v. Anderson,
189 F.3d 1201, 1210-11 (10th Cir. 1999). Mr. Jones stipulated to the drug quantities at
the sentencing hearing. Therefore, his claim the government presented insufficient
evidence at sentencing to support the drug amounts attributed to him is without merit.


                                            -6-
