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, this panel has determined

unanimously that oral argument would not materially assist in the determination
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of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is

therefore submitted without oral argument.

Ivan Calderon pleaded guilty to possession with intent to distribute 500

grams or more of a mixture or substance containing methamphetamine. In his

plea agreement, Mr. Calderon waived his right to appeal his sentence. He was

sentenced to 151 months in prison. Mr. Calderon timely 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 due to the government’s

failure to seek enforcement of the plea agreement, we find that Mr. Calderon’s

appeal is nonetheless frivolous. Therefore, we DISMISS 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 conditions of the plea agreement, the

government agreed to recommend a two level reduction if defendant demonstrated

an acceptance of responsibility. The government also agreed to recommend a
1Mr. Calderon agreed to a broad appeal waiver, whereby he agreed to waive

all appeals of his sentence, including, among other things, “the manner in which

the sentence is determined . . . on any ground whatever, except . . . a sentence

above the maximum penalty provided in the statute of conviction, and [] an

upward departure from the final sentencing guideline range determined by the

court.” Plea Agreement 4-5, R. Vol. I. The Plea Agreement further provides that

“the word ‘sentence’ appearing throughout this waiver provision is being used

broadly and applies to all aspects of the court’s sentencing authority, including

but not limited to (1) Sentencing Guidelines rulings and determinations. . . .” Id.

at 5 (emphasis added). 

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sentence at the low end of the applicable Sentencing Guidelines range and not to

seek a sentencing enhancement. As part of the plea agreement, 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 his recognition of criminal

conduct and assistance of authorities, giving him a total offense level of 33. No

enhancements were made. According to the Presentence 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 to 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. Calderon
2After a full examination of the record, we find these potential claims to be

frivolous. 

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waived his right to appeal his sentence and therefore his appeal is wholly

frivolous. Attorney Breeze also notes that “[Mr. Calderon] 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 Guidelines.

On July 27, 2005, this Court requested that the government 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 intend 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).
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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 that any 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 appealable issues based on the record. 

Id. The client may then choose to submit arguments to 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 grant counsel’s motion to

withdraw and may dismiss the appeal. Id. 

After a full examination of the record and consideration of both Mr.

Calderon’s response brief and the Anders brief filed by Attorney Breeze, we

determine that there are no non-frivolous issues upon 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 appeal, had it been raised, this
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Court’s precedents preclude dismissal on the basis of a waiver of appeal where

the government has neither filed a motion to enforce 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 Booker argument 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 enforcement of an appeal waiver, Clayton

holds that the waiver is waived when the government utterly 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 unpublished

decisions regarding whether appellate waivers should be enforced where the

government has failed to seek enforcement of the waiver but defense counsel has

raised the waiver issue in an Anders brief. See United States v. Dawson, No. 04-
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2176, 2005 WL 1847326, at *1 (10th Cir. Aug. 5, 2005) (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 waiver of the right

to appeal may itself be waived by the government. Among other reasons for this

result, rooted in the adversarial character of litigation, 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 allowing a criminal defendant to

appeal a wrongful sentence, even when the plea agreement included an appeal

waiver and the case falls outside the narrow exceptions 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 counsel is not the government, and

has no authority to waive or invoke arguments on behalf 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 the court, it is commendable that

counsel acknowledge procedural bars such as appellate waivers, but it surpasses

any legitimate understanding of the ethical obligations of counsel to the court to

say that defense counsel’s candid assessment of legal issues could satisfy the
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government’s obligations. The government cannot rely 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 agreement. 

Because the government has not sought enforcement of 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 brief.

II. Ineffective Assistance of Counsel and Commerce Clause Claims

Mr. Calderon concedes that none of his claims on appeal were raised

below, and argues this is because of ineffective assistance of counsel. However,

Mr. Calderon does not argue that Attorney Breeze rendered ineffective assistance

of counsel in his handling of any specific portion of the proceedings below,

including in his handling of the plea agreement. Mr. Calderon simply alleges that

Attorney Breeze rendered ineffective assistance in his handling of the appeal by

not pursuing claims under Booker and 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 brought on direct appeal are

presumptively dismissible, and virtually all will be 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 way our system has
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developed, in most cases a motion brought under § 2255 is preferable to direct

appeal for deciding claims of ineffective-assistance."). Therefore, even if Mr.

Calderon had adequately alleged that he was denied effective assistance of

counsel in the lower court, this Court would not address such a claim here. 

In addition, we decline to consider Mr. Calderon’s claim that the Controlled

Substances Act violates the Commerce Clause. Because Mr. Calderon failed to

raise this issue in the court below, he may not raise 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 commerce power), but it certainly

does not qualify as “plain” error. 

III. Booker Claims

 Mr. Calderon also argues that the recent decision in Booker rendered his

sentence void because it was imposed mandatorily under 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 sentence or sentencing range is the
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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 quotations omitted). Where a

defendant agrees to and receives a specific sentence, 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, the Court

lacks jurisdiction over the appeal. Id. 

In Silva, the defendant entered into a plea agreement by which 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 bottom of the applicable range

with no enhancements. Id. at 1284. On appeal, Silva argued that his sentence

was invalid because he was sentenced under a mandatory 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 three 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 obvious reason that Silva received

the specific sentence he bargained for as part of his guilty plea.” Id. The Court

further stated that “‘[a] sentence imposed under a Rule 11(c)(1)(C) plea arises
3On October 7, 2005, Mr. Calderon filed a “Motion for Summary

Disposition and Judgment on the Merits,” in which he argued that the

government’s failure to file a response brief constituted a ratification of the

claims contained in Mr. Calderon’s response brief. This motion is denied. 

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directly from the agreement itself, not from the Guidelines,’ and, therefore, ‘[a]s

Booker is concerned with sentences arising under the Guidelines, 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 agreement 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 which he bargained. Id. 

Because Booker does not concern sentences like Mr. Calderon’s, which arise

directly from a plea agreement, Mr. Calderon cannot argue that his sentence was

imposed in violation of the law. As in Silva, this Court has no jurisdiction over

Mr. Calderon’s Booker claims.

CONCLUSION

We have fully examined the record to determine whether 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