* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The 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.
**After examining the briefs and appellate record, this pan el has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument. 

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

### JUL 16 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 02-2239
v. (D. New Mexico) MELDON COOK,

Defendant - Appellant. (D.C. No. CR-01-1540)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, McKAY , and McCONNELL , Circuit Judges.
Defendant Meldon Cook pled guilty to one count of o pening or maintaining a place for the purpose of manufacturing, distribut ing, or using methamphetamine, in violation of 21 U.S.C. §§ 856(a)(1) and (b) and 18 U.S.C. § 2. On appeal, he wishes to challenge his conviction on the basis of the district court’s denial of his-2-

motion to suppress certain evidence. Appellate co unsel was appointed, and filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), stating that after conscientious examination of the total record on ap peal, it is his view that an appeal would be wholly frivolous, because Mr. Cook’ s plea agreement did not contain any language reserving the right to appeal the denial of his motion to
suppress. Federal Rule of Criminal Procedure 11(a)(2) permits a criminal defendant to enter a conditional plea of guilty, and thus to reserve the right to appeal the adverse determination of any specified pretrial mot ion, “[w]ith the approval of the court and the consent of the government.” In this c ase, however, Mr. Cook pled guilty unconditionally. There is no language in th e plea agreement that reserves the right to appeal, and no basis in the record forconcluding that the court approved, or the government consented to, any such condition. At the plea hearing, Mr. Cook was asked: “Do you understand that if you plead guilty, there will be no basis now or in the future to challenge the legality of any confession you may have given or any evidence that was seized. ” Mr. Cook responded: “Yes, sir.” In his correspondence with this Court, Mr. Cook states: The record is clear. In plea bargaining, Public De fender Gandert had the clause prohibiting my appeal of the illegal search and seizure removed from my Plea Agreement. I would never have signed it ot herwise. Further, at the time that the Plea was entered, it specifically states in the record, “Has-3-

your client waived his right to appeal?” His answerwas, “No.” (Sentencing transcript of August 19, 2002; Page 8, Lines 21 and 22). Finally, I was adamant that the suppression issue be appealed. Mr . Gandert agreed and encouraged me, filing my Notice of Appeal for me wi th this Honorable Court. Aware of our responsibilities to examine the record with special care when counsel has filed an Anders brief, we have done so, and find no basis for Defendant’s argument. His discussions with trial c ounsel are not part of the record, and nothing in the record supports his clai m that he reserved the right to appeal the suppression issue. To the contrary, as already noted, at his plea hearing Mr. Cook expressly acknowledged that he und erstood that by pleading guilty, he was giving up any basis for challenging the seizure of evidence. Defendant’s account of his sentencing hearing on Au gust 19, 2002 is not accurate. At that hearing, the judge informed Mr. Cook that h e had the right, pursuant to 18 U.S.C. § 3742, to “appeal final sentence of this co urt,” and asked him if he waived that right. Mr. Cook answered “No.” The ju dge then stated: “You do have the right, Mr. Cook, to appeal the final sente nce of this Court as it is imposed upon offenses for which a guideline has bee n issued by the Sentence Commission under 28, United States Code, Section 99 4.” Thus, Defendant’s reservation of a right to appeal was explicitly con fined to an appeal of the
sentence. No other grounds for appeal have been set forth.-4-

Defendant’s appeal of the judgment of conviction is therefore DISMISSED. His motion for appointment of a new appellate couns el is DENIED. His motion for extension of time to file a brief is DENIED. Appellate counsel’s motion to withdraw is GRANTED, which makes Defendant’s motionto dismiss appellate counsel moot, and therefore DISMISSED. Entered by the Court

Michael W. McConnell Circuit Judge