* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** The Honorable Tom Stagg, Senior District Judge, Uni ted States District Court for the Western District of Louisiana, sittin g by designation.

*** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 6 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHANNON L’RAY WALKER, Defendant - Appellant. No. 00-6388 (D.C. No. 00-CR-25-9-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY and MCWILLIAMS , Circuit Judges and STAGG ** , District Judge. ***
Defendant-Appellant Shannon L’Ray Walker pleaded gu ilty to conspiracy to possess with intent to distribute cocaine base ( crack), cocaine powder, and PCP in violation of 21 U.S.C. §§ 846 and 841, and was s entenced to 240 months of1 The plea agreement states in relevant part: [Mr. Walker] in exchange for the promises and conce ssions made by the United States in this plea agreement, knowingly and voluntarily waives his right to appeal or collaterally challeng e: a. Defendant’s guilty plea and any other aspects of his conviction including but not limited to any ruling on pretrial suppression motions or any other pretrial dispositi ons of motions and issues. b. Defendant’s sentence as imposed by the Court andthe manner in which the sentence is determined, provide d the sentence is within or below the applicable guidelin e range determined by the Court to apply to this case, even if the Court rejects one or more of the positions of the United States or the defendant set forth in paragraph 7 concerning the application of the U.S. Sentencing Guidelines; provided that(i) defendant specifically does not waive the right to appeal an upward departure from the sentencing guideline range deter mined by the Court to apply to this case, and (ii) his waive r of rights to appeal and to bring collateral challenges shall notapply to appeals or challenges based on cases decided after the date of this agreement which are held by the Tenth Circuit or Supreme Court to have retroactive effect.

Doc. 426 at 9-10.

- 2 - imprisonment and three years of supervised release. Doc. 599. Pursuant to the plea agreement signed June 28, 2000, Mr. Walker for feited all rights he had in any assets subject to forfeiture pursuant to 21 U.S .C. § 853, and waived his right to appeal or collaterally challenge the sentence imposed except under limited circumstances. 1 Doc. 426. In exchange for the plea, the Governme nt agreed to- 3 -

dismiss the other four charges made against Mr. Wal ker in the indictment. Mr. Walker filed a Motion to Withdraw a Plea of Guilty, Doc. 517, and Objections to the Pre-Sentencing Investigation Report, Doc. 518, but withdrew both at sentencing. XI Trans. at 2, 4. Mr. Walker now seeks to appeal the judgment and the sentence. Aplt. Br. ex. B at 1. The Government has filed a motion to d ismiss for lack of jurisdiction, relying upon the waiver of the right to appeal cont ained in the plea agreement, and a motion to supplement its motion to dismiss with t he plea transcript. Counsel for Mr. Walker has filed an Anders brief. See Anders v. California , 386 U.S. 738, 744 (1967). Counsel sent a copy of the Anders brief to Mr. Walker, Aplt. Br. ex. B, and requests to be allowed to withdraw as counsel f or Mr. Walker. Id. at 8. Mr. Walker initially filed a Motion for Leave to SubmitPro-Se Appellate Brief but later filed a motion to withdraw it. He subsequent ly filed a Statement of Issues for Appeal and Appellant’s Opposition to Appellate Coun sel’s Opening Brief Pursuant to Anders v. California , a Motion for Stay of Proceedings, and a Motion fo r Appointment of Appellate Counsel to Respond to the Government’s Brief. We have reviewed the case independently, includin g the transcripts of the plea hearing and the sentencing proceeding, the pre sentence report, and Mr. Walker’s motion in opposition to counsel’s Anders brief. A defendant is bound by the terms of a lawful plea agreement. United State s v. Atterberry , 144 F.3d 1299,- 4 -

1300 (10th Cir. 1998); United States v. Libretti , 38 F.3d 523, 529 (10th Cir. 1998). A knowing and voluntary waiver of statutory right t o appeal his sentence is generally enforceable. Atterberry , 144 F.3d at 1300; United States v. Hernandez , 134 F.3d 1435, 1437-38 (10th Cir. 1998). We reviewthe question of whether the plea agreement was entered knowingly and voluntaril y de novo. United States v. Rubio , 231 F.3d 709, 711 (10th Cir. 2000). Mr. Walker asserts that his guilty plea was unfairly obtained and given through ignorance a nd inadvertence in violation of his rights. Pro Se Aplt. Br. (Appeal Doc. 74) at 1. Mr. Walker, however, entered his plea agreement after consulting with co unsel and in exchange for the dismissal of four other counts against him. XII Tr ans. at 7. The record reveals the district court conducted a thorough inquiry at the plea hearing, during which Mr. Walker affirmed that he understood the nature of th e rights he was waiving, the charges against him, and the maximum statutory pena lties. He provided the factual basis for the plea. Nothing indicates thatMr. Walker’s decision to enter the plea agreement was other than knowing and volun tary or that any violation of Fed. R. Crim. P. 11 occurred. Therefore, a valid p lea agreement exists and Mr. Walker is bound by the waiver unless it falls withi n a legal or contractual exception. The general enforceability of a waiver of the rightto a direct appeal is subject to certain legal exceptions: (1) the senten ce exceeds the statutory- 5 -

maximum, (2) the sentence is tainted by racial bias , or (3) the plea agreement was tainted by ineffective assistance of counsel. Unit ed States v. Cockerham , 237 F.3d 1179, 1181-82 (10th Cir. 2001). Mr. Walker did notreceive a sentence in excess of the statutory maximum and has not alleged racial bias. Mr. Walker does, however, assert that he received ineffective assist ance of counsel during the plea process. Pro Se Aplt. Br. at 9-10. We will not pa ss on his claim at this juncture for the reasons stated in United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995) (“Ineffective assistance of counsel claims sh ould be brought in collateral proceedings, not on direct appeal.”). The plea agreement Mr. Walker entered contained two contractual exceptions to his waiver of the right to appeal: (i ) upward departures from the sentencing guideline range determined by the distri ct court to apply and (ii) appeals based on cases decided after the date of th e plea agreement which are held by the Tenth Circuit or Supreme Court to have retro active effect. Doc. 426 at 10. Neither of these exceptions apply; after concluding that the applicable sentence range was 360 months to life, the district court ap plied Apprendi v. New Jersey , 530 U.S. 466 (2000), and sentenced Mr. Walker to 24 0 months, within the statutory range. See United States v. Thompson , 237 F.3d 1258, 1262 (10th Cir. 2001) (noting that neither 21 U.S.C. § 841 nor § 84 6 require a specific quantity of drugs as an element of the offense, the maximum sen tence under these statutes was- 6 -

twenty years, and no Apprendi violation occurred where the defendant was sentenced to less than twenty years). APPEAL DISMISSED. Appellate defense counsel’s requ est for leave to withdraw is GRANTED. Appellee’s Motion to Suppleme nt Government’s Motion to Dismiss for Lack of Jurisdiction filed November 28, 2000 is GRANTED. All other pending motions are DENIED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge