UNITEDSTATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

v.

ARMANDO MARTINEZ-ANAYA,

Defendant - Appellant.No. 01-2139

(D.C. No. CR-00-1076-LH)

(D. New Mexico)ORDER AND JUDGMENT(*)

Before EBEL, HENRY, and HARTZ, Circuit Judges.(2)

Armando Martinez Anaya pleaded guilty to conspiring to possess more thanfive grams of cocaine with the intent to distribute (a violation of 21 U.S.C. § 846)and to possessing more than five grams of cocaine with the intent to distribute (aviolation of 21 U.S.C. § 841(b)(1)(A)). The plea agreement between thegovernment and Mr. Martinez-Anaya contains the following provision:

WAIVER OF APPEAL RIGHTS

The defendant is aware that Title 18, United States Code,§ 3742 affords a defendant the right to appeal the sentenceimposed. Acknowledging that, the defendant knowinglywaives the right to appeal any sentence within theapplicable guideline range as determined by the court afterresolution of any objections by either party to thepresentence report to be prepared in this case, and thedefendant specifically agrees not to appeal thedetermination of the court in resolving any contestedsentencing factor. In other words, the defendant waivesthe right to appeal the sentence imposed in this case,except to the extent, if any, that the court may departupwards from the applicable sentencing guideline range asdetermined by the court.

Rec. vol. I, doc. 51, at 4-5 (Plea Agreement filed Dec. 4, 2000). Following itsacceptance of his guilty plea, the district court sentenced Mr. Martinez-Anaya toconcurrent terms of 120 months' imprisonment on each conviction, followed byfive years' supervised release.

Despite of the waiver-of-appeal provision in the plea agreement, Mr.Martinez-Anaya filed a notice of appeal. His appellate counsel subsequently fileda brief pursuant to Anders v. California, 386 U.S. 738 (1967), advising the courtthat in light of the plea agreement provision, Mr. Martinez-Anaya's appeal isfrivolous. Mr. Martinez-Anaya's counsel has also filed a motion to withdraw. Asrequired, see id. at 744, copies of the Anders brief and the motion towithdrawhave been served upon Mr. Martinez-Anaya.

"A defendant's knowing and voluntary waiver of the statutory right toappeal his sentence is generally enforceable." United States v. Hernandez, 134F.3d 1435, 1437 (10th Cir. 1998). There are exceptions to this general rule. Forexample, in spite of a waiver provision, a defendant may still appeal his sentenceif the district court relied on an impermissible factor such as race, if ineffectiveassistance of counsel in connection with the negotiation of the waiver rendered thewaiver invalid, if the sentence exceeds the statutory maximum, or if the waiver isotherwise unlawful. See United States v. Cockerham, 237 F.3d 1179, 1182(10thCir. 2001).

However, none of those exceptions applies here. Mr. Martinez-Anaya doesnot argue that his sentence was based on consideration of an impermissible factor,that he received ineffective assistance of counsel in the negotiation of the pleaagreement, or that his sentence was otherwise unlawful. Additionally, the recordindicates that Mr. Martinez-Anaya entered into the plea agreement knowingly andvoluntarily.

Mr. Martinez-Anaya now contends that the district court erred in applyingthe statute (which requires a minimum sentence) and in calculating his criminalhistory. See Response to Motion to Dismiss for Lack of Jurisdiction at 2 (filedJune 4, 2001). However, we discern no error in the application of the statutoryminimum. The court found that the offense involved 22.75 kilograms of cocaine,see Rec. vol II, at 3 (Presentence Report, filed July 30, 2002), and therefore wasbound to impose a sentence of no less than ten years. See 21 U.S.C. 841(b)(1)(A)(ii); Rec. vol. II at 8 (noting that "[t]he term of imprisonment . . . isten (10) years' minimum . . .[pursuant to] 21 U.S.C. § 841(b)(1)(A)). Moreover,because the sentence was within the Guideline range of 120 to 121 months, seeid.at 8, ¶ 40, the waiver-of-appeal provision of the plea agreement precludes Mr.Martinez-Anaya from challenging the calculation of his criminal history.

Accordingly, we GRANT the motion to withdraw filed by Mr. Martinez-Anaya's counseland we DISMISS this appeal.

Entered for the Court,

Robert H. Henry

Circuit Judge

FOOTNOTES

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*. This order and judgment is not bindingprecedent, except under thedoctrines of res judicata, collateral estoppel, and law of the case. 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.

2. After examining the briefs and the appellaterecord, this panel hasdetermined unanimously that oral argument would not materially assist thedetermination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.34.1(G). The case is therefore submitted without oral argument.