* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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. 

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

### MAY 29 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOE THOMAS, Defendant - Appellant. No. 02-8000 (D.C. No. 01-CR-043-1B) (District of Wyoming)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). W e, therefore, honor the parties’ requests and order the case subm itted without oral argument. Defendant-Appellant Joe Thomas pleaded guilty to a single count of conspiracy to traffic in methamphetamine in violati on of 21 U.S.C. §§ 846,1 Section 2D1.1(d)(1) provides as follows: “If a vict im was killed under

circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or marit ime jurisdiction of the United States, apply § 2A1.1 (First Degree Murder).” -2- 841(a)(1), and 841(b)(1)(A). In calculating Thomas ’ sentence, the district court applied the cross-reference contained in United States Sentencing Guideline § 2D1.1(d)(1) 1 and sentenced Thomas to a term of imprisonment of 360 months. Thomas appeals, claiming that the district court co mmitted clear error in applying the cross-reference in § 2D1.1(d)(1). Because Thom as waived his right to appeal the sentence he received as a result of the plea ag reement, this court dismisses his appeal for lack of jurisdiction. See United States v. Rubio , 231 F.3d 709, 711 (10th Cir. 2000) (“If Defendant’s waiver [of appeal rights] is effective, we would certainly overreach our jurisdiction to entertain this appeal when the plea agreement deprived Defendant of the right to appeal .”). In his opening brief, Thomas does not acknowledge the waiver-of-appeal provision in the plea agreement and, instead, simpl y addresses the merits of the propriety of the district court’s use of the cross- reference in § 2D1.1(d)(1). In its response brief, the United States notes that the pl ea agreement contains the following waiver-of-appeal provision:

The Defendant agrees to waive his right to appeal the sentence he receives as a result of this Plea Agreement. Ho wever, if the United States appeals the Defendant’s sentence purs uant to 18 U.S.C. § 3742(b), the Defendant is released from this waiv er.-3-

The United States further notes that this court hon ors such waivers, as long as the plea was knowing and voluntary. See Rubio , 231 F.3d at 712. The United States then undertakes a thorough exposition of the plea p roceedings, demonstrating that Thomas entered the plea agreement knowingly and vol untarily. Thomas did not file a reply brief and, hence, does not contest the United States’ assertion that he knowingly and voluntarily entered into the plea agr eement and that the agreement waives his right to bring the present appeal. Neve rtheless, in an abundance of caution, this court has undertaken a detailed revie w of the entire record in this case to verify that Thomas’ plea was knowing and vo luntary. See id. (“We review the question of whether the plea was knowing and vo luntary de novo.”). Pursuant to the plea agreement, Thomas appeared in court on September 26, 2001, to formally enter his plea. As the hearing c ommenced, Thomas’ counsel began by noting for the record that he was going to have Thomas review the plea agreement to make sure that it was the same document that he had signed previously. After that process was complete, the c ourt called the case and the government’s attorney orally described the salient provisions of the agreement, including in particular the fact that it required T homas to waive the right to appeal his sentence. At that same time, the govern ment’s attorney highlighted that the principal sentencing issue would likely be the applicability of § 2D1.1(d)(1). The district court then generally dis cussed the terms of the plea-4-

agreement and the nature of the charge set out in the indictment. At that point, the district court placed Thomas under oath and eng aged in the following colloquy: THE COURT: Mr. Thomas, is your plea of guilty a vol untary plea? THE DEFENDANT: Yes, Your Honor, it is. THE COURT: Is anybody forcing you to plead guilty? THE DEFENDANT: No, Your Honor. THE COURT: Has your attorney made you plead guilty? THE DEFENDANT: No, Your Honor. THE COURT: Is it your own idea? THE DEFENDANT: Yes, Your Honor. THE COURT: And why are you pleading guilty? THE DEFENDANT: Because, Your Honor, in fact, I am g uilty of the charge. Following this colloquy, Thomas established a more specific factual basis for the charge to which he was pleading guilty. Then, base d on the foregoing, the district court concluded that Thomas’ plea was knowing and v oluntary and that there existed a sufficient factual basis to support it. The district court, therefore, accepted the guilty plea and directed that sentenci ng proceedings commence. The record, as set out above, makes clear that Thom as knowingly and voluntarily entered into the plea agreement, which contains a valid waiver-of--5-

appeal provision. Therefore, a valid plea agreement exists and Thomas is bound by its terms. Accordingly, this appeal is DISMISSED for lack of jurisdiction.
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge