* After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral argument. SeeFed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel.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 

### OCT 14 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. CALVIN BROWN, Defendant-Appellant. No. 96-8126 (D.C. No. 96-CR-41-02J) (District of Wyoming)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and KELLY , Circuit Judges.
Calvin Brown accepted a plea agreement and pleaded guilty to one count of conspiracy to possess with intent to distribute coc aine base, 21 U.S.C. § 846 and 21 U.S.C. § 841. He was sentenced to sixty-three m onths’ imprisonment and now appeals his sentence.1 The plea colloquy contained the following dialogue between Brown and the

court: Court: Both you and the government under certain circumstances may be

able to appeal a sentence imposed by the Court. You have waived your right to appeal in this plea agreement. However, if you have waived and you’ve entered into a plea agreement which waives some or all of your rights to appeal the sentence itself, I need to tell you that such waivers have generally been upheld in the appellate Court and would be upheld against you. But if you believe the waiver is unenforceable, you, of course, are free to present that theory to the appellate court and get a ruling and tell them whatever circumstances that you feel would apply to your particular case. Brown: Yes, sir, Your Honor. Court: Do you understand that by entering a plea of guilty you will have waived or given up your right to appeal all or part of this sentence? Brown: Yes, sir, Your Honor. (Plea Tr. at 14-15.) - 2 - In Brown’s plea agreement, however, he waived his r ight to appeal his sentence. Paragraph 14 of the plea agreement state s: “The Defendant agrees to waive his right to appeal the sentence he receives as a result of this Plea Agreement. However, if the United States appeals t he Defendant’s sentence pursuant to 18 U.S.C. § 3742(B), the Defendant is r eleased from his waiver.” The court directed Brown’s attention to this provision during his change of plea hearing and Brown acknowledged the waiver. (Plea T r. at 14-15.) 1 On appeal Brown does not allege that his acceptance of the wa iver provision was unknowing or involuntary, does not challenge the plea agreeme nt, and does not attempt to explain why the waiver provision should not be uphe ld.- 3 -

We find no reason not to hold Brown to his negotiat ed plea agreement. The United States has not appealed Brown’s sentence, an d consequently by the plain terms of his plea agreement Brown has waived his ri ght to appeal. The appeal is
DISMISSED. The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge