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

### November 7, 2005

Clerk of Court PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 05-4011 IVAN CALDERON, also known as Martin Camacho,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D.C. NO. 2:04-CR-256-TC)

Submitted on the briefs. Robert Breeze, Salt Lake City, Utah, for Defendant- Appellant. Ivan Calderon, filed a brief pro se.

Before HARTZ , BARRETT , and McCONNELL, Circuit Judges.

McCONNELL , Circuit Judge.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist in the determination-2-

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T his case is therefore submitted without oral argument. Ivan Calderon pleaded guilty to possession with int ent to distribute 500 grams or more of a mixture or substance containing methamphetamine. In his plea agreement, Mr. Calderon waived his right to ap peal his sentence. He was sentenced to 151 months in prison. Mr. Calderon t imely appealed, and his counsel, Robert Breeze, filed an Anders brief and moved to withdraw as counsel. See Anders v. California , 386 U.S. 738 (1967). Mr. Calderon then filed a response brief to the Anders brief. The government declined to submit a brief. Although we decline to enforce the appeal waiver du e to the government’s failure to seek enforcement of the plea agreement, we find that Mr. Calderon’s appeal is nonetheless frivolous. Therefore, we DIS MISS the appeal and GRANT Attorney Breeze’s motion to withdraw. BACKGROUND On November 2, 2004, Mr. Calderon pleaded guilty to possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. § 841(a) (1) and punishable by 21 U.S.C. § 841(b)(1)(A). Under the terms and conditi ons of the plea agreement, the government agreed to recommend a two level reductio n if defendant demonstrated an acceptance of responsibility. The government al so agreed to recommend a1 Mr. Calderon agreed to a broad appeal waiver, where by he agreed to waive

all appeals of his sentence, including, among otherthings, “the manner in which the sentence is determined . . . on any ground what ever, except . . . a sentence above the maximum penalty provided in the statute o f conviction, and [] an upward departure from the final sentencing guidelin e range determined by the court.” Plea Agreement 4-5, R. Vol. I. The Plea A greement further provides that “the word ‘sentence’ appearing throughout this waiv er provision is being used broadly and applies to all aspects of the court’s s entencing authority, including but not limited to (1) Sentencing Guidelines rulings and determinations . . . .” Id

. at 5 (emphasis added). -3- sentence at the low end of the applicable Sentencin g Guidelines range and not to seek a sentencing enhancement. As part of the pleaagreement, Mr. Calderon waived his right to appeal his sentence. 1 Under the Federal Sentencing Guidelines applicable at the time, the base level for Mr. Calderon’s offense was 36. U.S.S.G. § 2D1.1(c)(2). Mr. Calderon was given a reduction of three levels because of hi s recognition of criminal conduct and assistance of authorities, giving him atotal offense level of 33. No enhancements were made. According to the Presente nce Report, the applicable sentencing range under the Guidelines was from 151 to 188 months. On January 11, 2005, Mr. Calderon was sentenced to 151 months of confinement, to be followed by 60 months of supervised release. On appeal, Attorney Breeze filed a brief pursuant t o Anders and moved to withdraw as counsel. Attorney Breeze provided the Anders brief to both the court and his client. In the Anders brief, Attorney Breeze argues that Mr. Calderon2 After a full examination of the record, we find the se potential claims to be

frivolous. -4- waived his right to appeal his sentence and therefo re his appeal is wholly frivolous. Attorney Breeze also notes that “[Mr. C alderon] could argue that he should be able to appeal his 151-month sentence and. . . the denial of his motion to suppress,” id ., without developing these potential arguments. 2 After receiving the Anders brief, Mr. Calderon submitted a response (entitled“Pro Se Opening Brief of Appellant”), raising several arguments to the Court. Mr. Calderon’s arguments can be summarized as follows: (1) The Controlled Substances Act, 21 U.S.C. § 801 et seq., violates the Commerce Clause; (2) Mr. Calderon was denied the effective assistance of counsel; and (3) The Supreme Court’s recent decision in United States v. Booker , ___ U.S. ___, 125 S. Ct. 738 (2005) rendered void any sentence imposed under the Federal Sentencing Guide lines. On July 27, 2005, this Court requested that the gov ernment either file a brief in this case or state its intention to not do so. On August 1, the government notified the Court via letter that it did not inten d to submit a brief in this matter, on the ground that the issues raised are frivolous. The government did not mention or rely on Mr. Calderon’s appeal waiver in the plea agreement. Nor did the government file a motion to enforce the appeal waiver. See United States v. Hahn , 359 F.3d 1315, 1328 (10th Cir. 2004).-5- DISCUSSION The Supreme Court’s decision in Anders v. California , 386 U.S. 738 (1967), authorizes counsel to request permission to withdraw where counsel conscientiously examines a case and determines thatany appeal would be wholly frivolous. Id . at 744. Under Anders , counsel must submit a brief to the client and the appellate court indicating any potential appeal able issues based on the record. Id . The client may then choose to submit arguments t o the court. Id . The Court must then conduct a full examination of the record to determine whether defendant’s claims are wholly frivolous. Id . If the court concludes after such an examination that the appeal is frivolous, it may gr ant counsel’s motion to withdraw and may dismiss the appeal. Id

. After a full examination of the record and consider ation of both Mr. Calderon’s response brief and the Anders brief filed by Attorney Breeze, we determine that there are no non-frivolous issues up on which Mr. Calderon has a basis for appeal. I. Appeal Waiver Attorney Breeze argues in his Anders brief that the appeal waiver in Mr. Calderon’s plea agreement bars this Court’s review of Mr. Calderon’s sentence, and therefore renders his appeal wholly frivolous. While the appeal waiver might well have provided a basis for dismissal of the app eal, had it been raised, this-6-

Court’s precedents preclude dismissal on the basis of a waiver of appeal where the government has neither filed a motion to enforc e the waiver nor raised the waiver in its brief. This Court recently refused to enforce a defendant’ s waiver in her plea agreement of her right to raise a Bookerargument on appeal because the government “neither filed a motion to enforce Clark ’s plea agreement,” (citing United States v. Hahn , 359 F.3d 1315, 1328 (10th Cir. 2004) (en banc), “ nor argued in its brief that we should dismiss Clark’s appeal on the basis of her appellate rights waiver.” United States v. Clark, 415 F.3d 1234, 1238 n.1 (10th Cir. 2005) (citing United States v. Clayton , 416 F.3d 1236, 1239 (10th Cir. 2005) (decided three days after Clark)). Although the government is accorded flexibility in the form of its request for enforcem ent of an appeal waiver, Clayton holds that the waiver is waived when the governmentutterly neglects to invoke the waiver in this Court. Clayton , 416 F.3d at 1238-39. This case is arguably distinguishable from Clayton because here, unlike Clayton , defense counsel has filed an Anders brief noting the waiver. Since the decision in Clark, this Court has taken inconsistent positions in unp ublished decisions regarding whether appellate waivers shoul d be enforced where the government has failed to seek enforcement of the wa iver but defense counsel has raised the waiver issue in an Anders brief. See United States v. Dawson , No. 04--7-

2176, 2005 WL 1847326, at *1 (10th Cir. Aug. 5, 200 5) (enforcing the waiver); United States v. Varela-Ortiz , No. 04-2343, 2005 WL 2114162, at *1 (10th Cir. Sept. 2, 2005) (declining to enforce the waiver). We believe that Varela-Ortiz is more consistent with the reasoning in Clayton

. Clayton stands for the proposition that the benefit of a w aiver of the right to appeal may itself be waived by the government. Among other reasons for this result, rooted in the adversarial character of liti gation, we suppose that Clayton might be defended on the ground that in some cases, the government might conclude that justice would be better served by all owing a criminal defendant to appeal a wrongful sentence, even when the plea agre ement included an appeal waiver and the case falls outside the narrow except ions of Hahn . Whatever the rationale underlying Clayton , however, we cannot accede to the notion that defense counsel, in filing an Anders brief, has satisfied the government’s obligation to raise the waiver issue. Defense coun sel is not the government, and has no authority to waive or invoke arguments on be half of the government. In filing an Anders brief, counsel is under ethical obligations to the client and to the court. In performing the function of officer of th e court, it is commendable that counsel acknowledge procedural bars such as appellate waivers, but it surpasses any legitimate understanding of the ethical obligat ions of counsel to the court to say that defense counsel’s candid assessment of leg al issues could satisfy the-8-

government’s obligations. The government cannot re ly on defense counsel’s raising the argument in an Anders brief as a substitute for fulfilling its own obligation to seek enforcement of the plea agreemen t. Because the government has not sought enforcement o f Mr. Calderon’s plea agreement, we refuse to enforce the appeal waiver. We now move to the merits of the claims raised in Mr. Calderon’s response bri ef. II. Ineffective Assistance of Counsel and Commerce Clause C laims Mr. Calderon concedes that none of his claims on ap peal were raised below, and argues this is because of ineffective as sistance of counsel. However, Mr. Calderon does not argue that Attorney Breeze re ndered ineffective assistance of counsel in his handling of any specific portion of the proceedings below, including in his handling of the plea agreement. M r. Calderon simply alleges that Attorney Breeze rendered ineffective assistance in his handling of the appeal by not pursuing claims under Bookerand related cases in his Anders brief, and by submitting the Anders brief itself. Ineffective assistance of counsel claims “should be brought in collateral proceedings, not on direct appeal. Such claims brou ght on direct appeal are presumptively dismissible, and virtually all will b e dismissed." United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995); see also Massaro v. United States , 538 U.S. 500, 504-05 (2003) ("In light of the wayour system has-9-

developed, in most cases a motion brought under § 2 255 is preferable to direct appeal for deciding claims of ineffective-assistanc e."). Therefore, even if Mr. Calderon had adequately alleged that he was denied effective assistance of counsel in the lower court, this Court would not ad dress such a claim here. In addition, we decline to consider Mr. Calderon’s claim that the Controlled Substances Act violates the Commerce Clause. Becau se Mr. Calderon failed to raise this issue in the court below, he may not rai se the issue on appeal, absent plain error. Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). We doubt that the Commerce Clause challenge to the Controlled Substances Act would succeed under any standard of review, see Gonzales v. Raich , 125 S. Ct. 2195 (2005) (holding that the regulation of marijuana under the Controlled Substances Act was squarely within Congress’s comme rce power), but it certainly does not qualify as “plain” error. III. Booker Claims Mr. Calderon also argues that the recent d ecision in Bookerrendered his sentence void because it was imposed mandatorily un der the Federal Sentencing Guidelines. However, no Booker issue exists in this case because Mr. Calderon received a sentence to which he agreed in his plea agreement. Under Federal Rule of Criminal Procedure 11(c)(1)(C ), parties may, in structuring a guilty plea, “agree that a specific s entence or sentencing range is the-10-

appropriate disposition of the case, . . . (such a recommendation or request binds the court once the court accepts the plea agreement ).” United States v. Silva , 413 F.3d 1283, 1284 (10th Cir. 2005) (internal quotatio ns omitted). Where a defendant agrees to and receives a specific sentenc e, he may appeal the sentence only if it was (1) imposed in violation of the law, (2) imposed as a result of an incorrect application of the Guidelines, or (3) is greater than the sentence set forth in the plea agreement. Id . (citing 18 U.S.C. § 3742(a), (c)). Otherwise, th e Court lacks jurisdiction over the appeal. Id

. In Silva , the defendant entered into a plea agreement by wh ich the parties agreed he would be sentenced at the bottom of the applicable Guideline range. Id

. at 1283. The district court sentenced him to the b ottom of the applicable range with no enhancements. Id . at 1284. On appeal, Silva argued that his senten ce was invalid because he was sentenced under a mandat ory sentencing scheme in violation of Booker

. Id . The Court held that it did not have jurisdiction over the appeal because Silva failed to meet one of the thre e requirements given under 18 U.S.C. § 3742(a) and (c). Id . Explaining that Silva’s only plausible argument was that his sentence was imposed in violation of the law, the Court determined that this argument failed “for the simple and obvio us reason that Silva received the specific sentence he bargained for as part of h is guilty plea.” Id . The Court further stated that “‘[a] sentence imposed under a Rule 11(c)(1)(C) plea arises3 On October 7, 2005, Mr. Calderon filed a “Motion fo r Summary

Disposition and Judgment on the Merits,” in which h e argued that the government’s failure to file a response brief const ituted a ratification of the claims contained in Mr. Calderon’s response brief. This motion is denied. -11- directly from the agreement itself, not from the Gu idelines,’ and, therefore, ‘[a]s Bookeris concerned with sentences arising under the Guid elines, it is inapplicable in this situation.’” Id . (quoting United States v. Cieslowski , 410 F.3d 353, 364-65 (7th Cir. 2005)). Like Silva, Mr. Calderon agreed in his plea agreeme nt that a sentence within the range provided by the Guidelines was the appropriate disposition of his case. Mr. Calderon also received a sentence at the bottom of the sentencing range with no enhancements—the specific sentence for whic h he bargained. Id

. Because Booker does not concern sentences like Mr. Calderon’s, whi ch arise directly from a plea agreement, Mr. Calderon cannotargue that his sentence was imposed in violation of the law. As in Silva , this Court has no jurisdiction over Mr. Calderon’s Bookerclaims. CONCLUSION We have fully examined the record to determine whet her there are any other claims arguable on their merits, and have found that Mr. Calderon’s appeal is wholly frivolous. Accordingly, we DISMISS this appeal and GRANT counsel’s motion to withdraw. 3