UNITEDSTATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE ALBERTO ALEMAN-LUBO,

Defendant-Appellant.No. 00-2433

(D.C. No. CR-00-150-JC)

(D. N.M.)

ORDER AND JUDGMENT(*)

Before ANDERSON and BALDOCK,Circuit Judges, and BRORBY, SeniorCircuit Judge.

After examining the briefs and appellate record, this panel has determinedunanimously to grant the parties' request for a decision on the briefs without oralargument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is thereforeordered submitted without oral argument.

Defendant Jose Alberto Aleman-Lubo pleaded guilty in May 2000 to onecount of possessing with intent to distribute more than 100 kilograms ofmarijuana in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C.§ 841(b)(1)(B), and18 U.S.C. 2. Pursuant to the plea agreement, defendant waived his right toappeal the sentence imposed except to challenge an upward departure from theapplicable sentencing guideline range. See R. Vol. I, tab 21 at 5. In accordancewith the plea agreement, the government recommended that defendant receivea three-level reduction from his base offense level for acceptance of responsibilitypursuant to § 3E1.1 of the United States Sentencing Guidelines (USSG) anda three-level reduction for being a minor participant in the crime pursuant toUSSG § 3B1.2. Id. at 3-4. The plea agreement further provided that, ifdefendantmet the criteria for the "safety valve" provision of 18 U.S.C. § 3553(f), he wouldbe granted an additional two-level base offense level reduction under USSG§ 2D1.1(b)(6) and relief from the minimum mandatory sentence. Id. at4.

Based on a pre-sentence investigation, however, it was determined thatdefendant did not meet the criteria under 18 U.S.C. § 3553(f) because he had twoconvictions for driving while intoxicated and one conviction for driving with asuspended license and, thus, had a criminal history of II. The sentencing courtfound defendant had a total offense level, after all reductions, of twenty and acriminal history category of II. Because defendant did not qualify for relief under§ 3553(f) from the minimum mandatory sentence, and because the range based onthe guidelines was below the statutorily required minimum sentence of sixtymonths, the court sentenced defendant to the statutory minimum sentence of sixtymonths' imprisonment pursuant to USSG § 5G.1.1, and four years' supervisedrelease.

Defendant appealed, alleging that the district court should have conducteda hearing on his criminal history and that he should not have a criminal historypoint for driving with a suspended license. Defendant also claims he was deniedequal protection because he did not qualify under a policy of the U.S. Attorney toseek less prison time for certain first-time drug couriers. Defendant also claimshis trial attorney was ineffective for failing to discover and inform him of theconsequences of his three misdemeanor offenses prior to the time he signed theplea agreement, and for failing to argue at sentencing that his criminal historywas overstated and that he was denied equal protection under the law.

On appeal, defendant's attorney has filed an Anders v. California, 386 U.S.738 (1967), brief presenting these issues, and has filed a motion to withdraw. As required, a copy of counsel's Anders brief and motion to withdraw wereprovided to defendant, see id. at 744, and he filed a pro se brief. Pursuant to ourduty under Anders, we have conducted an independent review of defendant'ssentence, see id., and we agree that the appeal is frivolous.

We decline to address defendant's arguments that he received ineffectiveassistance of counsel. These allegations require development of a factual recordby the district court, and, consequently, are properly brought in a collateralproceeding and not in this direct appeal. United States v. Galloway, 56 F.3d1239, 1240 (10th Cir. 1995) (en banc). We dismiss defendant's allegationsagainst his trial attorney without prejudice.

As to defendant's remaining claims, the United States correctly arguesthat defendant waived his statutory right to appeal by knowingly and voluntarilywaiving that right in his plea agreement. See United States v. Atterberry,144 F.3d 1299, 1300 (10th Cir. 1998) (agreement to waive right to appeal isenforceable).

[A]greements waiving the right to appeal are subject to certainexceptions, including where the agreement was involuntary orunknowing, where the court relied on an impermissible factor suchas race, or where the agreement is otherwise unlawful. In addition,a waiver may not be used to preclude appellate review of a sentencethat exceeds the statutory maximum or to deny review of a claim thatthe agreement was entered into with ineffective assistance ofcounsel.

United States v. Cockerham, 237 F.3d 1179, 1182 (10th Cir.), petition forcert. filed (U.S. July 23, 2001) (No. 01-5462) (quotations and citations deleted). Our review of the record reveals that defendant entered into the plea agreementwaiving his appellate rights knowingly and voluntarily. The defendant does notclaim that he did not know the terms of his plea agreement or that his plea wasunknowing or involuntary. The district court did not depart upward from theapplicable sentencing guideline range nor exceed the statutory maximumsentence. Finally, as noted above, defendant's ineffective assistance of counselclaims are not properly before this court and have been dismissed, so thatexception does not here apply.

Therefore, we GRANT counsel's request to withdraw and DISMISS theappeal.

Entered for the Court

Bobby R. Baldock

Circuit Judge

FOOTNOTES

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*. This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata, and collateral estoppel. The courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.