* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore submitted without o ral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court ge nerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment 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 

### MAR 2 2005 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. YOLANDA JEFFERSON, Defendant-Appellant. No. 04-1114 (D.C. No. 99-CR-439-S) (Colorado)



### ORDER AND JUDGMENT *

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

After a jury trial, Yolanda Jefferson was convicted of conspiracy to distribute fifty grams of more of cocaine base in v iolation of 21 U.S.C. § 846 (count one); possession with intent to distribute f ifty grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) (count two); and possession of firearms-2-

in furtherance of the drug trafficking crimes in vi olation of 18 U.S.C. § 924(c)(1) (count four). The district court sentenced Ms. Jef ferson to concurrent 300-month terms of imprisonment on counts one and two and a c onsecutive 60-month term on count four, for a total term of 360 months. Ms. Jefferson filed a timely notice of appeal of he r conviction and sentence. After agreeing to cooperate with the gov ernment in its investigation and prosecution of other individuals, Ms. Jefferson filed a motion for voluntary dismissal of her appeal, which we granted. In exch ange for Ms. Jefferson’s cooperation and the dismissal of her appeal, the go vernment agreed to seek a fifty percent reduction in Ms. Jefferson’s sentence pursu ant to Fed. R. Crim. P. 35(b). The district court granted the government’s motion and reduced Ms. Jefferson’s sentence to a term of 180 months. She now appeals, raising issues pursuant to Blakely v. Washington , 124 S.Ct. 2531 (2004). We dismiss Ms. Jefferson’ s appeal for lack of jurisdiction. Ms. Jefferson contends she is entitled to resentenc ing pursuant to Blakely because the district court erred in imposing a sent ence based upon facts not proven beyond a reasonable doubt to a jury. It is uncontested Ms. Jefferson’s jury did not consider the total amount of cocaine that c ould be attributed to her over and above the fifty grams of cocaine base that was necessary for her conviction. Moreover, Ms. Jefferson objected at her original se ntencing hearing to the amount-3-

of cocaine base attributed to her by the Presentenc e Report (PSR). The district court found the government had proved by a preponde rance of the evidence that Ms. Jefferson’s offense involved 1.5 kilograms of c ocaine. Due to this finding, the district court calculated Ms. Jefferson’s base offense level at 38 pursuant to U.S.S.G. § 2D1.1(c)(1). Ms. Jefferson concedes that she abandoned her chall enge to the quantity of cocaine attributed to her in her original appeal. In fact, Ms. Jefferson’s sole argument there was that the district court erroneou sly counted uncounseled misdemeanor convictions in calculating her criminal history category. Ms. Jefferson waived her Sixth Amendment argument by fa iling to raise it on direct appeal. See United States v. Abdenbi , 361 F.3d 1282, 1289 (10th Cir. 2004). Ms. Jefferson insists that this court should nevertheless review her original sentence for plain error. We are not persuaded. M s. Jefferson abandoned the direct appeal of her conviction and sentence in exc hange for the government’s agreement to seek a Rule 35(b) reduction. We are t herefore not confronted with a situation where a defendant has neglected to preserve an issue for appeal; rather, we are faced with a defendant who voluntarily aband oned her appeal. Ms. Jefferson simply cannot resurrect a direct appeal o f her original sentence which she voluntarily forfeited simply because the distri ct court subsequently resentenced her pursuant to a Rule 35(b) hearing.1 Ms. Jefferson has requested permission to submit s upplemental briefing

regarding United States v. Booker , 125 S. Ct. 738 (2005). As a result of our decision today, we deny that motion as moot. -4- Alternatively, Ms. Jefferson contends we should rev iew her reduced sentence because it contains an “inherent, lurking” Blakelyerror. Jurisdiction to hear appeals from the resolution of a Rule 35(b) mo tion is governed by 18 U.S.C. § 3742, which does not normally permit review of th e amount of a downward departure. United States v. Neary , 183 F.3d 1196, 1197 (10th Cir. 1999). Ms. Jefferson contends her new sentence was imposed in violation of the law and is therefore reviewable under § 3742(a)(1). We disagr ee. At Ms. Jefferson’s Rule 35(b) hearing, the government explained why she was deserving of a fifty percent reduction in her sentence. The district court was persuaded that Ms. Jefferson had substantially assisted the government pursuant to the cooperation agreement and sentenced her accordingly. The court’s actions do not implicate the Supreme Court’s recent holding in United States v. Booker , 125 S.Ct. 738 (2005). The court neither engaged in any judicial fact-finding nor acted under the false impression that it was mandated or required to redu ce Ms. Jefferson’s sentence. 1 Ms. Jefferson’s reduced sentence was not imposed inviolation of the law. Thus, we lack jurisdiction over this appeal under § 3742( a)(1).-5-

For the reasons stated above, this appeal is dismis sed for want of jurisdiction.
ENTERED FOR THE COURT Stephanie K. Seymour Circuit Judge