                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         OCT 16 2002
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 01-3144
      v.                                       D.C. No. 98-CR-40107-05-SAC
                                                        (D. Kansas)
MICHAEL E. RUSSELL,

            Defendant - Appellant.




                           ORDER AND JUDGMENT           *




Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.


      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        This order and judgment is not binding precedent, except under the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 res judicata, collateral estoppel, and law of the case. 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 defendant Michael E. Russell argues that the district court erred in

refusing to grant him a three-level decrease in his offense level pursuant to

section 3E1.1 of the United States Sentencing Guidelines. Because Mr. Russell

and the government stipulated to the offense level, we conclude that we lack

jurisdiction over this appeal.



                                   I. BACKGROUND

         The defendant Michael E. Russell pleaded guilty to one count of possession

of 27.45 grams of methamphetamine with the intent to distribute (a violation of

21 U.S.C. § 841(a)(1)), and one count of perjury (a violation of 18 U.S.C. §

1623). After receiving the proposed presentence report, Mr. Russell filed a

motion to withdraw his guilty plea. Mr. Russell argued that his attorney had

misinformed him as to whether certain drug quantities involved in the conspiracy

alleged in the indictment would be considered in determining relevant conduct at

sentencing. See Rec. vol. I, doc. 220 (Motion to Withdraw Guilty Plea, and

attached affidavit of Michael E. Russell). The district court denied Mr. Russell’s

motion, reasoning that although Mr. Russell disagreed with the presentence

report, he had failed to establish that his guilty plea was not knowing and

voluntary. See Rec. vol. I doc. 232, at 16-26. (Dist. Ct. Order, filed Jan. 30,

2001).


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      At the beginning of Mr. Russell’s sentencing hearing, the district court

announced its proposed rulings on Mr. Russell’s objections to the presentence

report. The court explained that the rulings were tentative and that it would

consider any additional evidence presented by the parties. The court then

suggested a recess so that the parties could attempt to reach an agreement as to

the disputed issues.

      After a recess, the prosecutor announced that the parties had reached the

following agreement:

             [W]e have reached an agreement whereby the parties
             stipulate that the applicable base offense level, based on
             the amount of methamphetamine involved, which was
             eight grams of actual, would be a 24. The defendant
             indicated he’s willing to stipulate that he not receive
             credit for acceptance of responsibility. He’s going to
             stipulate to the application of a two-level enhancement for
             obstruction and the application of a two-level enhancement
             for firearm possession, which results in a final or total
             offense level of 28. The defendant is also willing to
             stipulate to a criminal history category of 4, which makes
             the applicable guideline [range] 110 to 137 months if my
             calculations are correct. There are no agreements as to
             where the defendant should end up within that guideline
             range, and each of the parties reserves the right to argue to
             the court what sentence within that 110-137 month
             guideline range should be imposed.

Rec. vol VIII, doc. 285, at 28 (Tr. of Sentencing Hr’g, May 2, 2001).

      The court then asked Mr. Russell’s counsel about the prosecutor’s

statement. Mr. Russell’s counsel replied, “[T]hat is the appropriate agreement.”


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Id. Next, the court asked Mr. Russell if the prosecutor’s statement reflected Mr.

Russell’s understanding of the agreement and if Mr. Russell was “satisfied with

that understanding and agreement.”    Id. at 29. Mr. Russell responded

affirmatively, and the court accepted the stipulation.

      The court then set Mr. Russell’s total offense level at twenty-eight and his

criminal history at four. The court sentenced Mr. Russell to concurrent terms of

imprisonment of 123 months on the methamphetamine charge and 60 months on

the perjury charge, as well as a term of supervised release.

      On appeal, Mr. Russell’s counsel has filed an   Anders brief and a motion to

withdraw. See Counsel’s Motion to Withdraw Pursuant to Tenth Circuit Rule

46.4(B) (citing Anders v. California , 386 U.S. 738, 744 (1967) (permitting

counsel who considers an appeal to be wholly frivolous to advise the court of that

fact, request permission to withdraw from the case, and submit a brief referring to

portions of the record that arguably support the appeal)). In this brief, Mr.

Russell’s counsel argues that Mr. Russell is entitled to a three-level reduction in

his offense level pursuant to section 3E1.1 of the United States Sentencing

Guidelines.



                                  II. DISCUSSION




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       Generally, we review the district court’s interpretation and application of

the sentencing guidelines de novo and review the underlying factual

determinations for clear error.   United States v. Pappert , 112 F.3d 1073, 1078

(10th Cir.1997). However, when, as here, the government contends that the

defendant has waived his right to appeal his sentence, the ultimate question of

whether that wavier was knowing, voluntary, and therefore enforceable is a

question of law that we examine de novo.     United States v. Rubio , 231 F.3d 709,

712 (10th Cir. 2000).

       Upon review of the record, we agree with Mr. Russell’s counsel that, in

light of the stipulation announced at the sentencing hearing, Mr. Russell’s

challenge to the district court’s application of the Guidelines is frivolous. This

circuit has held that when a defendant knowingly and voluntarily agrees to a

particular offense level, we lack jurisdiction to review a resulting sentence that is

based upon that offense level and is otherwise lawful and consistent with the

Sentencing Guidelines.     See United States v. Veri , 108 F.3d 1311, 1313-15 (10th

Cir. 1997) (construing Fed. R. Crim. P. 11(e)(1)(C), which allows the parties to

“agree that a specific sentence is the appropriate disposition of the case”). Here,

Mr. Russell has not argued that the stipulation was not knowing and voluntary.

Instead, his only challenge is to the court’s setting of the offense level at twenty-




                                           -5-
eight. By stipulating to that offense level at sentencing, he has waived his right

to appeal that determination.

      Moreover, there is no indication in the record that Mr. Russell’s sentence is

inconsistent with the Guidelines or otherwise unlawful. Therefore, we lack

jurisdiction over this appeal.



                                 III. CONCLUSION

      Accordingly, we GRANT Mr. Russell’s counsel’s motion to withdraw, and

we DISMISS this appeal.




                                 Entered for the Court,




                                  Robert H. Henry
                                  Circuit Judge




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