* This order and judgment is not binding precedent, e xcept under the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

### NOV 7 2001 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. EDUARDO GARCIA-GONZALES, also known as Eduardo Garcia, also known as Eduardo Garcia Gonzalez,

Defendant-Appellant. No. 01-6037 (D.C. No. 00-CR-104-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior Circuit Judge.

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.1 The agreement specifically noted Mr. Garcia-Gonzale s’s refusal to waive

his right to appeal an upward departure of the sent encing guidelines or retroactive application of changes in the law of this circuit o r the U.S. Supreme Court. -2- On August 16, 2000, a federal grand jury indicted d efendant Eduardo Garcia-Gonzales on a charge of possession with inte nt to distribute more than 500 grams of methamphetamine in violation of 18 U.S .C. § 841(a)(1). On October 31, 2000, he entered into a plea agreement with the government which specified a maximum statutory penalty of life impri sonment or a fine of $4,000,000.00, or both, a mandatory special assessm ent of $100.00, and a term of supervised release of not less than five years. In his petition to enter a guilty plea, Mr. Garcia- Gonzales indicated his understanding, through counsel, that a plea in this case could lead to his surrender of a number of constitutional rights. Under the se ction titled “Waiver of Right to Appeal and Bring Collateral Challenge,” the plea ag reement stated that in exchange for certain concessions made by the UnitedStates, Garcia-Gonzales knowingly and voluntarily waives his right to appea l or collaterally challenge: (a) . . . any issue or challenge before the district court concerning the circumstances leading up to his arre st on July 18, 2000, and agrees not to file any motions to suppres s addressing the car stop or the subsequent search of his vehicle [o r] (b) . . . [his] sentence . . . , provided the sentence is within orbelow the applicable guideline range. R., Vol. 1, Doc. 21, at 4. 12 Anders holds that if counsel finds a case to be wholly fr ivolous after

conscientious examination, he may so advise the cou rt and request permission to withdraw. Anders , 386 U.S. at 744. Counsel must also submit to the court a brief referring to anything in the record arguably supportive of the appeal. The brief is (continued...) -3- At his plea hearing before the district court on Fe bruary 12, 2001, the following colloquy took place: THE COURT: Do you understand, Mr. Gonzalez [sic], that by agreeing to enter a plea of guilty, pursuant to thi s plea agreement, you’re waiving your right to appeal?
THE DEFENDANT: Yes. THE COURT: And have you discussed that with your attorney? THE DEFENDANT: Yes. THE COURT: And you understand that?
THE DEFENDANT: Yes. Aplee. Supp. App. at 47. After reviewing the pre-sentence report, and over s everal of the defendant’s sentencing objections, the district court imposed asentence of 235 months, a five-year term of supervised release and a specia l assessment of $100.00. Mr. Garcia-Gonzales now appeals. In a response to the government’s motion to dismiss this appeal based on the issue of waiver, Mr. Garcia-Gonzales’s counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and has moved for leave to withdraw. 22 (...continued)

then served upon the client, who may then raise any point he chooses, and this court thereafter undertakes a complete examination of all proceedings and decides whether the appeal is, in fact, frivolous. If it s o finds, it may grant counsel’s request to withdraw and dismiss the appeal. Id. -4- That brief does not point us to anything in the rec ord arguably supportive of Mr. Garcia-Gonzales’s appeal. Mr. Garcia-Gonzales has filed a response in which he argues only that the government’s indictme nt “failed to invoke federal jurisdiction” by “fail[ing] to include any mention or designation” of the Commerce Clause of the United States Constitution o r the effect on interstate commerce of the illegal activity in any of the char ging documents. Aplt. Closing Br. at 2. For the reasons set out below, we grant counsel’s motion to withdraw and dismiss the appeal. We have held many times that, subject to certain pu blic policy constraints, “‘[a] defendant’s knowing and voluntary waiver of the statutory right to appeal his sentence is generally enforceable.’” United States v. Black , 201 F.3d 1296, 1300 (10th Cir. 2000) (quoting United States v. Atterberry , 144 F.3d 1299, 1300 (10th Cir. 1998)) (further quotation omitted). To the extent Mr. Garcia-Gonzales now argues that he waived his right to appeal eithe r involuntarily or without knowledge, a question we review de novo, we must di sagree. Nothing in the record indicates that Mr. Garcia-Gonzales’s decisio n to enter into the plea was other than knowing and voluntary. He was informed on a number of occasions of-5-

the maximum statutory penalties and other potential ly negative ramifications of his plea, in addition to those parts of the bargain which would benefit him by avoiding trial. Knowing these things, Mr. Garcia-G onzales accepted the conditions of the agreement, including its waiver o f appellate review. In addition to the record, we have read defendant’s briefs on appeal and we find nothing that persuades us to change our view that Mr. Garcia-Gonzales was fully aware of the charges against him. Moreover, we find nothing in his briefs or the record to convince us to strike the plea agreem ent and waiver of appeal in the interest of public policy. To the extent that Mr. Garcia-Gonzales’s arguments raise issues concerning the jurisdiction of the fed eral courts to hear his case under the drug trafficking laws in Title 21, we find thes e arguments to be without merit and the appeal, on the whole, to be frivolous. Therefore, the United States’ motion to dismiss is GRANTED. The appeal is DISMISSED. Counsel’s motion to withdraw is GRAN TED.

Entered for the Court

Bobby R. Baldock Circuit Judge