*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### MAY 25 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. GABRIEL CRUZ-ORDUNA, Defendant-Appellant. No. 03-1302 (D. Colo.) (D.Ct. No. 02-CR-144-1)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, and PORFILIO and BRORBY , Senior Circuit Judges.

After examining the briefs and appellate record, th is panel 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). T he case is therefore ordered submitted without oral argument.-2-

Appellant Gabriel Cruz-Orduna, a federal prisoner r epresented by counsel, pled guilty to possession with intent to distribute , and aiding and abetting with intent to distribute, more than 500 grams of cocain e, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii)(II). T he district court sentenced Mr. Cruz-Orduna to forty-one months imprisonment. Afte r Mr. Cruz-Orduna filed a timely notice of appeal, his counsel filed an appea l brief, pursuant to Anders v. California , 386 U.S. 738, 744 (1967), alleging that, in his o pinion, no meritorious appellate issues exist and requesting permission to withdraw as Mr. CruzOrduna’s counsel. Although the holding in Anders entitles a defendant to raise additional points in response to an Anders brief and such opportunity was given in this case, Mr. Cruz-Orduna made no such filing. See id . We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 129 1 and affirm Mr. CruzOrduna’s conviction and sentence.

I. Factual and Procedural Background The relevant facts follow. A federal immigration o fficer patrolling a highway in southwestern Colorado spotted a white van with Nebraska plates, traveling in the opposite direction, which accelerated when it spotted the officer’s patrol car, and again when the officer made a U-tur n in order to follow it. As the officer’s patrol car approached, the van accelerate d again, and then repeated a-3-

pattern of slowing and accelerating excessively forseveral minutes until the officer activated the patrol car’s emergency lights and the van stopped. In response to the officer’s identification of himself as an immigration officer and request for identification, Mr. Cruz-Orduna admitte d he was a Mexican citizen in the United States illegally and gave the officer pe rmission to search the van. When the officer noticed an overstuffed suitcase in the van and asked to open it, Mr. Cruz-Orduna gave him permission; the suitcase c ontained a large amount of marijuana. After officers took Mr. Cruz-Orduna to a police station for further questioning, he told them the van’s roof paneling c ontained a large cache of cocaine, which officers ultimately seized and deter mined weighed in excess of 500 grams.

Following his arrest, Mr. Cruz-Orduna pled guilty t o possession with intent to distribute, and aiding and abetting with intent to distribute, more than 500 grams of cocaine, in exchange for the government dr opping a second count related to his possession of approximately twenty-o ne pounds of marijuana. Based on the conditions of the guilty plea, the pro bation officer’s recommendations, and the government’s suggestions, the district court determined Mr. Cruz-Orduna met the criteria for a two-level sa fety-valve adjustment to his base offense level, pursuant to United States Sente ncing Guidelines (U.S.S.G.)-4-

§§2D1.1(b)(6) and 5C1.2; awarded him a three-level reduction for acceptance of responsibility under U.S.S.G. §3E1.1; and granted the government’s motion for a downward departure under U.S.S.G. §5K1.1, based on assistance Mr. CruzOrduna gave authorities investigating his and otherdrug trafficking offenses. Based on the type and amount of drugs involved, the district court determined the offense level at 28. Applying this and other Sente ncing Guidelines, the district court calculated Mr. Cruz-Orduna’s final sentencing guideline range at forty-six to fifty-seven months imprisonment, reduced the Sentencing Guideline range by ten percent pursuant to the government’s motion fordownward departure, and sentenced Mr. Cruz-Orduna to forty-one months impri sonment.

II. Discussion On appeal, Mr. Cruz-Orduna’s counsel suggests a rev iew of the record reveals no grounds for challenging the traffic stop , the subsequent search of his van or his statements at the police station, and th at “[e]ven if there were, Mr. Cruz-Orduna has waived them, since he entered an un conditional plea of guilty.” (Apt. Br. at 3.) He further points out the distric t court based Mr. Cruz-Orduna’s sentence on an accurate determination of the applic able drug quantity and offense level, as well as the three favorable sentencing gu ideline rulings which reduced Mr. Cruz-Orduna’s sentence below the applicable sentencing range.-5-

After carefully reviewing the record, it is clear M r. Cruz-Orduna’s plea agreement preserved no issues for appeal and, there fore, is an unconditional plea. In the absence of a conditional plea, a defendant, like Mr. Cruz-Orduna, who pleads guilty “may not thereafter raise independentclaims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea,” and may only “attack the voluntary and intel ligent character of the guilty plea.” Tollett v. Henderson , 411 U.S. 258, 267 (1973). In this case, Mr. Cruz

Orduna does not challenge the voluntary and intelli gent character of his guilty plea, and a review of his record on appeal presents no such issue. Thus, by entering the plea agreement, Mr. Cruz-Orduna “waive [d] all non-jurisdictional challenges to his conviction.” See United States v. Dwyer , 245 F.3d 1168, 1170 (10th Cir. 2001). Consequently, as his counsel poi nts out, Mr. Cruz-Orduna retains no basis for challenging the traffic stop, the subsequent search of his van, his statements at the police station, or any other action taken prior to his guilty plea.

We next turn to whether any sentencing issues arise from Mr. CruzOrduna’s appeal. When reviewing an application of the Sentencing Guidelines, “[t]his court reviews the district court’s legal co nclusions under the Sentencing Guidelines de novo and its factual findings for clear error, affordin g great-6-

deference to the district court’s application of th e Guidelines to the facts.” United States v. Eaton , 260 F.3d 1232, 1237 (10th Cir. 2001). Under 18 U .S.C. § 3742(a), a sentence that falls within the Sentenc ing Guidelines cannot be successfully appealed unless it is imposed in violation of law, as a result of an incorrect application of the Guidelines, or is othe rwise premised on facial illegality, improper calculations, or clearly erron eous fact findings. See United States v. Garcia , 919 F.2d 1478, 1479, 1481 (10th Cir. 1990) (relyi ng on 18 U.S.C. § 3742(a)(1) and (2)).

With these principles in mind and after a careful r eview of the record concerning Mr. Cruz-Orduna’s sentence, we conclude the district court did not impose Mr. Cruz-Orduna’s sentence in violation of l aw or as a result of an incorrect application of the Sentencing Guidelines, or that his sentence is otherwise improper under 18 U.S.C. § 3742. Clearly , Mr. Cruz-Orduna’s sentence falls within the appropriate guideline ran ge, and as his counsel points out, he was afforded favorable reductions in his se ntence of which he cannot complain.

III. Conclusion After a careful review of the record on appeal, we conclude no grounds for-7-

appeal exist. We grant counsel’s request to withdr aw and AFFIRM Mr. CruzOrduna’s conviction and sentence.

Entered by the Court: WADE BRORBY United States Circuit Judge