UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff–Appellee,

v. ERIK WALTER WALNY, Defendant–Appellant. No. 11-2147 (D.C. No. 2:10-CR-03156-RB-1) (D.N.M.)

ORDER AND JUDGMENT *

Before LUCERO , O’BRIEN , and MATHESON , Circuit Judges.

Erik Walny appeals follo wing his guilty plea to one count of possession of marijuana with inte nt to distribute. His counsel moves for leave to withdraw in a brief filed pursuant to Anders v. California, 38 6 U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C. § 1291, we dismiss the appe al and grant counsel’s motion to withdraw.

* The case is unanimously ordered subm itted without oral argument pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel. The court generally disf avors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 7, 2012

Elisabeth A. Shumaker Clerk of Court-2- I United States Border Patrol agents st opped Walny’s vehicle at a border checkpoint near Alamogordo, New Mexico. He consented to a canine sniff of his vehicle by agent

Gustavo Arana and his certified dr ug dog “Paco.” According to Arana, Paco alerted to an open window of Walny’s vehicle. The dog rais ed its ears, sniffed in tently, and refused to move from the spot, an alert Arana refers to as the “pinpoint stare.” An ensuing search of

the vehicle uncovered 12.58 kilograms of marijuana. Walny disputed Arana’s version of events at a suppression hear ing. He testified that, from approximately forty feet away, he observed the canine sniff and the dog never exhibited any changes in behavior. The district court explicitly credited Arana’s version of the facts and rejected Walny’s competing story. It denied Walny’s motion to suppress. Following the district court’s suppressi on ruling, Walny pled guilty to the sole

count of the indictment. He agreed to waive the right to appeal his conviction and sentence, but reserved the right to appeal the district cour t’s denial of his suppression motion and to pursue potential ineffective assist ance claims. The district court sentenced Walny to one year of probation. Walny filed a timely notice of appeal.

II An attorney may seek leav e to withdraw if, after conscientiously examining a case, the attorney determines that an appeal would be wholly fri volous. Anders, 386 U.S. at

744. Under these circumstan ces, counsel must submit a brie f highlighting any potentially appealable issues. This cour t notifies the defendant of counsel’s filings and permits the-3- defendant an opportunity to submit a pro se br ief. If the court determines that the appeal is in fact frivolous based on its independ ent review of the reco rd, we will grant the request to withdraw and dismiss the appeal. Id. In this case, the court notified Walny that counsel filed an Anders brief and provided him an opportunity to file a pro se brief. Walny has declined to do so. In the Anders brief, counsel notes that Wa lny waived his right to appeal all issues other than suppression and ineffective assistan ce of counsel. Based on the record before us, we agree that the appellate waiver is enforceable. See United States v. Hahn, 359 F.3d 1315, 1325-27 (10th Ci r. 2004) (en banc) (per curi am) (knowing and voluntary appellate waivers are generally enforceable abse nt a miscarriage of justice). We further

note that ineffective assistance claims are us ually not considered on direct appeal, but should be pursued in habeas corpus proceedi ngs. See Massaro v. United States, 538 U.S. 500, 504-05 (2003). With respect to the suppression issue, we agree with counsel that any appeal

would be frivolous. The district court determined that the drug dog alerted to Walny’s vehicle. Such factual findings are subject to clear error review. See United States v. Parada, 577 F.3d 1275, 1281 (10th Cir. 2009). The record does not suggest the district court’s conclusion was clearly erroneous. And it is well-settled that an alert from a certified drug dog is sufficient to provide prob able cause. See United States v. Ludwig, 641 F.3d 1243, 1250-51 (10th Cir. 2011).-4- III Because we are not presented with an y meritorious grounds for appeal, we GRANT counsel’s request to withdraw and DISMISS the appeal.

Entered for the Court

Carlos F. Lucero Circuit Judge