* This order and judgment is not binding precedent, e xcept under the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

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

### JUL 27 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. ROBERT L. BATTLE,

Defendant-Appellant. No. 00-3280 (D.C. No. 00-CR-10027-MLB)

(D. Kan.)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, PORFILIO , and ANDERSON , 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). T he case is therefore ordered submitted without oral argument. Robert L. Battle appeals from his conviction and se ntence after he pleaded guilty to possession with intent to distribute appr oximately twenty grams of-2-

cocaine base in violation of 21 U.S.C. § 841(a)(1). Finding Mr. Battle to be a career offender, the district court imposed a 210-m onth sentence after denying Mr. Battle’s motion to withdraw his plea. On appea l, Mr. Battle’s counsel filed

an Anders brief raising three issues and then moved to withdraw. See Anders v. California , 386 U.S. 738 (1967). Mr. Battle filed a suppleme ntal brief raising four additional issues. Our jurisdiction arises un der 28 U.S.C. § 1291, and we affirm in part and dismiss in part.

I. Ineffective assistance of counsel claims Appellate counsel and Mr. Battle raised issues of i neffective assistance of trial counsel although both acknowledged that these claims should be raised on collateral review rather than on direct appeal. See United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995). Mr. Battle re quests, however, that we remand the case to the district court for a full he aring on the claim as is the practice of the Second Circuit. See United States v. Leone , 215 F.3d 253, 256-57 (2d Cir. 2000). We deny the request, see United States v. Reyes-Platero , 224 F.3d 1112, 1113 (9th Cir. 2000) (refusing to remand inef fective assistance of counsel claim to district court on direct appeal because itcauses judicial inefficiency and two opportunities for factfinding), cert. denied , 121 S. Ct. 868 (2001), and dismiss these claims.-3-

II. Waiver of appeal rights The United States argues that Mr. Battle waived his statutory right to appeal his sentence by knowingly and voluntarily wa iving that right in his plea agreement. See United States v. Atterberry , 144 F.3d 1299, 1300 (10th Cir. 1998) (agreement to waive right to appeal is enforceable); United States v. Rubio , 231 F.3d 709, 710 (10th Cir. 2000) (dismissing issu es related to enforceable plea agreement waiver). The agreement stated, in relevant part, that Mr. Battle knowingly waives the right to appeal any sentence w ithin the maximum provided in the statute(s) of conviction (o r the manner in which that sentence was determined) on the grounds set forth in Title 18, United States Code, Section 3742 or on any ground whatever, in exchange for the concessions made by the United States in this plea agreement. R. Vol. I, Doc. 17 at 2. Mr. Battle counters that the waiver was overly broad and permitted absolution of unforeseen judicial errors, and that it is inapplicable in the face of a meritorious claim of ineffective assi stance of counsel. [A]greements waiving the right to appeal are subjec t to certain exceptions, including where the agreement was invol untary or unknowing, where the court relied on an impermissib le factor such as race, or where the agreement is otherwise unlawf ul. In addition, a waiver may not be used to preclude appellate revi ew of a sentence that exceeds the statutory maximum or to deny revie w of a claim that the agreement was entered into with ineffectiv e assistance of counsel. United States v. Cockerham , 237 F.3d 1179, 1182 (10th Cir. 2001) (quotations and citations deleted). We conclude that the waive r is not overly broad, and none-4-

of the purely speculative scenarios described by Mr . Battle that could hypothetically result in “absolution” of unforeseenerror exist in this case. Of course, as mentioned above, Mr. Battle’s ineffec tive assistance of counsel claims are not properly before the court and must b e dismissed, so that exception does not here apply. As to the other issues raisedon appeal, we must determine whether each falls within the waiver language, and if so, whether an exception applies to the waiver. A. Denial of motion to withdraw plea; voluntarines s of plea The waiver clause waives only the right to challeng e the sentence imposed, not the right to challenge the plea agreement itsel f or the court’s refusal to allow its withdrawal. We conclude that Mr. Battle did no t waive his right to appeal from the district court’s denial of his motion to w ithdraw his guilty plea or his claim that the plea was involuntary. B. Error in calculating Mr. Battle’s sentence Mr. Battle pleaded guilty to possession with intentto distribute approximately twenty grams of crack in violation of 21 U.S.C. § 841(a)(1); section 841(b)(1)(B)(ii) provides for an imprisonme nt range of not less than five years to not more than forty years for this crime. The district court sentenced Mr. Battle to 210 months’ imprisonment, which was well within the maximum range for the offense. Appellate counsel raised two issu es in regard to the calculation-5-

of sentence: (1) whether the court properly enhanc ed Mr. Battle’s sentence under the career offender sentencing provisions based upo n a prior felony conviction of escape; and (2) whether the court erred in consider ing drugs charged in a dismissed count as relevant conduct as part of its sentencing considerations. In addition, Mr. Battle argues that his sentence was e xcessive because (3) he was sentenced for an offense involving cocaine base, wh ich he claims has not been adequately defined as an essential element in the c riminal statutes (or, in the alternative, which is an overly broad definition), and (4) therefore, the sentencing level the court applied was inapplicable because he should have been sentenced only under the guidelines applying to the possessio n with intent to distribute cocaine powder instead of crack cocaine. These iss ues all relate to the imposition or calculation of a sentence within the maximum permissible range, and are expressly waived under the plea agreement. They ar e therefore dismissed.
III. Knowing and voluntary plea Mr. Battle argues that his plea admitting guilt was not knowing and voluntary because the district court failed to info rm him that the type and quantity of controlled substances were essential el ements of the crime that had to be proved beyond a reasonable doubt. He relies on Bousley v. United States , 523 U.S. 614, 618-19 (1998) (stating that when court misinforms defendant of essential elements, resulting plea is rendered unkn owing and involuntary), and-6-

Apprendi v. New Jersey , 530 U.S. 466, 490 (2000) (holding that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt”). Without providing rec ord support, he claims that he was merely informed that the type and quantity o f the controlled substances were only sentencing factors that would be determin ed by the court upon a preponderance of the evidence at sentencing. We have carefully reviewed the transcript of the sentencing hearing. The plea col loquy is as follows: [Y]ou’re going to plead guilty to Count 1 of the in dictment which charges that on or about October 10, 1999, . . . [y ou] did willfully, knowingly, and unlawfully possess with intent to di stribute approximately 20 grams of a mixture or substance wh ich contained a detectable amount of cocaine base, or crack, . . . in violation of 21 U.S. Code § 841(a)(1) and 18 U.S. Code § 2.

. . . . [B]ecause of the quantity involved, there is a mand atory minimum sentence in this case of not less than five nor mor e than 40 years imprisonment.

. . . . [T]he Government if the case went to trial would have to prove to a jury that you committed these offenses . . . c harged in the indictment. And as to Count 1, it would have to pr ove certain elements. Basically . . . that you willfully, know ingly and unlawfully, which means that you intentionally and you knew what you were doing, possessed with the intent to distri bute approximately 20 grams of crack cocaine.-7-

R. Vol. II, Doc. 24 at 4-6. The record clearly dem onstrates that the district court properly informed Mr. Battle that the government ha d to prove both the type and quantity of controlled substance as elements of his crime. The record also demonstrates that Mr. Battle swore that he understo od the maximum penalty that could be imposed because of the quantity of crack c ocaine involved, that he would serve at least five years, that his lawyer’s advice as to the sentence the lawyer hoped he would receive was not a promise of the sentence he would actually receive, that he actually committed the of fense to which he pleaded guilty, and that he fully understood what the waive r of appeal rights meant. See id. at 5-12. Under these facts, neither Bousley nor Apprendi apply. Mr. Battle’s plea of guilt was knowingly and volunt arily made.
IV. Denial of the motion to withdraw guilty plea Two months after he pleaded guilty, Mr. Battle move d to withdraw his guilty plea and complained about his retained couns el. R. Vol. III, Doc. 40 at 3. He claimed his counsel was ineffective because he d id not make Mr. Battle aware of all the evidence the government had nor of the c oncept of relevant conduct before he entered his plea, and that he did not hav e a “clear notion of what his sentence could be or should be going into the plea hearing.” Id. at 5. He claimed that counsel misinformed him as to the sentence he risked if he did not plead guilty and of the range he would get if he did. Id. at 14-15. He again admitted to-8-

possession of the crack cocaine but argued that the re was no admissible evidence that he intended to distribute it and that he now b elieved he could be successful in a motion to suppress the evidence for lack of probable cause to stop him the day he was arrested with the crack. Id. at 39, 46. He asserted that if he had been adequately advised, he would not have accepted the plea. Id. at 50. The district court conducted an analysis using the factors set forth in United States v. Black , 201 F.3d 1296, 1300 (10th Cir. 2000), and found that Mr. Battle was not innocent of the charges; the government wou ld be prejudiced by having to go to trial; there would be inconvenience to the court and a waste of judicial resources if the plea was withdrawn; Mr. Battle hadsufficiently satisfactory and competent representation; and his plea was knowing and voluntary. R. Vol. III, Doc. 40 at 51-55. The court concluded that Mr. Battle had not established a fair and just reason for the withdrawal of his plea and denied his motion to withdraw the plea. Id. at 61-62. The decision to allow withdrawal of a plea is solid ly within the province of the district court and we review that decision onlyfor an abuse of discretion. United States v. Gordon , 4 F.3d 1567, 1572-73 (10th Cir. 1993). The distr ict court considered the proper factors in denying the motion and its findings are well supported in the record. We conclude that the district court did not abuse its discretion in denying the motion to withdraw the plea. Cf. id. at 1573 (stating-9-

that “dissatisfaction with the length of a sentence is an insufficient reason to withdraw a plea”). For the reasons stated above, we AFFIRM the distric t court’s denial of Mr. Battle’s motion to withdraw his guilty plea, an d DISMISS the appeal of his sentence and his ineffective assistance of counsel claim. We GRANT Mr. Mank’s motion to withdraw as appointed appellate counsel f or Mr. Battle. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

Stephen H. Anderson Circuit Judge