* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Tom Stagg, Senior District Judge, Uni ted States District Court for the Western District of Louisiana, sittin g by designation.

*** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 6 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MYRON ANDRE WILLIAMS, a/k/a Inch, Defendant - Appellant. No. 00-6417 (D.C. No. 00-CR-25-R) (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before KELLY and McWILLIAMS , Circuit Judges and STAGG , ** District Judge. ***
Defendant-Appellant Myron Andre Williams pleaded gu ilty to conspiracy to possess with intent to distribute cocaine base (cra ck), cocaine powder, and PCP in violation of 21 U.S.C. §§ 846 and 841. Pursuant to a plea agreement, he forfeited1 The plea agreement states in relevant part: [Mr. Williams] in exchange for the promises and con cessions made by the United States in this plea agreement, knowin gly and voluntarily waives his right to appeal or collatera lly challenge: b. Defendant’s sentence as imposed by the Court andthe manner in which the sentence is determined, provide d the sentence is within or below the applicable guidelin e range determined by the Court to apply to this case, even if the Court rejects one or more of the positions of the United States or the defendant set forth in paragraph 7 concerning the application of the U.S. Sentencing Guidelines; provided that(i) defendant specifically does not waive the right to appeal an upward departure from the sentencing guideline range deter mined by the Court to apply to this case, and (ii) his waive r of rights to appeal and to bring collateral challenges shall notapply to appeals or challenges based on cases decided after the date of this agreement which are held by the Tenth Circuit or Supreme Court to have retroactive effect. Plea Agreement at 9-10.

- 2 - all rights he had in any assets subject to forfeitu re pursuant to 21 U.S.C. § 853, and waived his right to appeal or collaterally chal lenge the sentence imposed except under limited circumstances. 1 In exchange for the plea, the government agreed to dismiss the other eight charges made agai nst Mr. Williams in the indictment. Mr. Williams timely filed Objections t o the Pre-Sentencing Investigation Report objecting to the constitutiona lity of a firearm enhancement, denying he had a firearm during the commission of afelony, and objecting to the sufficiency of the evidence for a firearm enhanceme nt. The district court at- 3 -

sentencing overruled Mr. Williams’ Objections. Sentencing Trans. at 22. After concluding that the applicable sentence range was 2 35 to 293 months, the district court sentenced Mr. Williams to 235 months of impri sonment and five years of supervised release. Doc. 594. Mr. Williams now seeks to appeal his sentence. Cou nsel for Mr. Williams has filed an Anders brief, served a copy of the brief on Mr. Williams and now requests that he be allowed to withdraw as counsel for Mr. Williams. Aplt. Br. at
4-5. We have reviewed the case independently, includin g the transcript of the sentencing proceedings and the presentence report. A defendant will be held to the terms of a lawful plea agreement. United State s v. Atterberry , 144 F.3d 1299, 1300 (10th Cir. 1998). A defendant’s knowing and voluntary waiver of his statutory right to appeal his sentence is generallyenforceable. Id. We review the question of whether the plea agreement was entered knowingly and voluntarily de novo. United States v. Rubio , 231 F.3d 709, 711 (10th Cir. 2000). Counsel argu es that Mr. Williams could not have knowingly waived h is statutory right to appeal his sentence because he “[did] not have and [could] not have any knowledge of the nature and magnitude of the sentencing errors he pu rport[ed] to have waived.” Aplt. Br. at 9. Mr. Williams, however, entered hi s plea agreement after consulting with counsel and in exchange for the dis missal of eight other counts- 4 -

against him. Aplt. Br. at 8. The record reveals t he district court conducted a thorough inquiry at the plea hearing, during which Mr. Williams affirmed that he understood the nature of the rights he was waiving. Nothing in the record indicates that Mr. Williams’ decision to enter the plea agreement was other than knowing and voluntary. Therefore, a valid plea agr eement exists and Mr. Williams is bound by it. Given the enforceable plea agreement, Mr. Williams can only appeal (i) upward departures from the sentencing guideline ran ge determined by the district court to apply and (ii) appeals based on cases deci ded after the date of the plea agreement which are held by the Tenth Circuit or Supreme Court to have retroactive effect. Plea Agreement at 10. Our rev iew of the record reveals that the district court did not upwardly depart from the ran ge it determined to be applicable. With respect to exception (ii), the plea agreement was entered June 23, 2000. Apprendi v. New Jersey , 530 U.S. 466 (2000), was decided on June 26, 2000 and is to be applied retroactively to all case s pending on direct review or not yet final. United States v. Lujan , 268 F.3d 965, 967 n.2 (10th Cir. 2001). In Apprendi , the Supreme Court held that other than a prior co nviction, any fact that increases the penalty for a crime beyond the prescr ibed statutory maximum must be charged in the indictment. 530 U.S. at 482. Th e statutory maximum for- 5 -

possession of a schedule II controlled substance wi th intent to distribute is 20 years regardless of the quantity involved. 21 U.S. C. § 841(b)(1)(C). Because Mr. Williams was sentenced to less than 20 years, Appre ndi does not apply in this case irrespective of what the Indictment said about quantity. Count One of the Indictment clearly states that Mr. Williams is char ged with conspiracy to possess with intent to distribute cocaine base (crack), coc aine powder, and PCP, all schedule II controlled substances. Indictment at 2 . See United States v. Thompson , 237 F.3d 1258, 1262 (10th Cir. 2001) (noting thatneither 21 U.S.C. § 841 nor § 846 require a specific quantity of drugs as an element of the offense, the maximum sentence under these statutes was twenty ye ars, and no Apprendi violation occurred where the defendant was sentence d to less than twenty years). We AFFIRM Mr. Williams’ sentence insofar as the App rendi claim; we DISMISS his appeal based upon any other grounds. M r. Williams’ petition to proceed IFP is GRANTED. Appellate defense counsel’ s request for leave to withdraw is GRANTED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge