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

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The c ase is therefore ordered submitted without oral argument. This orde r and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### DEC 4 2002 

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

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. ARMANDO PADILLA,

Defendant - Appellant. No. 02-5081 D.C. No. 99-CR-66-C (N.D. Oklahoma)

ORDER AND JUDGMENT *

Before PORFILIO andBALDOCK , Circuit Judges, and BRORBY , Senior Circuit Judge.

Appellant Armando Padilla pled guilty to one count of distribution of an unspecified amount of methamphetamine. Based on it s findings regarding the quantity of drugs involved, the district court sent enced Mr. Padilla to over twenty-four years’ imprisonment, in excess of the s tatutory maximum. Mr.-2-

Padilla appealed his initial sentence to this court . Relying on Apprendi v. New Jersey , 530 U.S. 466, 490 (2000), we reversed and remande d for re-sentencing. At re-sentencing, it was determined that the senten cing guidelines range was 292-365 months, and the statutory maximum sente nce was 240 months. Since there were no grounds for a downward departure, the district court’s only option was to sentence Mr. Padilla to 240 months’ imprisonment. Mr. Padilla had previously waived his right to appeal his sentence unless it exceeded the statutory maximum. Nonetheless, Mr. Padilla proceeded to fil e a pro se notice of appeal. Pursuant to 10th Cir. R. 46.3, the counsel representing Mr. Padilla at resentencing were required to continue their representation on appeal. Counsel filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and have moved for leave to withdraw. Mr. Padilla did not f ile a response to the Anders brief and the government did not file a reply brief

. In their Anders brief counsel raised the issue of whether Mr. Padi lla’s trial attorney was ineffective in failing to advise him o f the effects of relevant conduct when pleading to a lesser amount of drugs. By allo wing Mr. Padilla to testify without advising him regarding relevant conduct, tr ial counsel allegedly caused an increase in his offense level, and accordingly, his guideline range. Ineffective assistance of counsel claims should be brought in c ollateral proceedings, not on direct appeal.” United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995).-3-

Appellate counsel concedes this point. Counsel als o notes that, in his plea agreement, Mr. Padilla waived all appellate rights, except his right to appeal if the sentence exceeded the statutory maximum. To avoid dismissal of his appeal, Mr. Padilla must show why we should not enforce the waiver provision of the plea agreement. United States v. Rubio , 231 F.3d 709, 711 (10th Cir. 2000). Whether a defe ndant’s waiver was knowing and voluntary is reviewed de novo. Id. at 712. Mr. Padilla has offered no argument as to the validity of the waiver, and noth ing in the record suggests that Mr. Padilla’s decision to consent to the waiver was unknowing or involuntary. “If the waiver is effective, we would certainly overrea ch our jurisdiction to entertain this appeal when the plea agreement deprived Defend ant of the right to appeal.” Id. at 711. Accordingly, we DISMISS this appeal and GRANT couns els’ motions to withdraw.

Entered for the Court

Wade Brorby Senior Circuit Judge