OpenJurist

39 F3d 1119 United States v. Prieto-Duran

39 F.3d 1119

UNITED STATES of America, Plaintiff-Appellee,
v.
Jose Luis PRIETO-DURAN, Defendant-Appellant.

No. 94-2071.

United States Court of Appeals,
Tenth Circuit.

Nov. 8, 1994.

Submitted on the briefs:*

Richard C. Cauble, Las Cruces, NM, for defendant-appellant.

John J. Kelly, U.S. Atty., and Tara C. Neda, Asst. U.S. Atty., Albuquerque, NM, for plaintiff-appellee.

Before SEYMOUR, Chief Judge, McKAY, and BALDOCK, Circuit Judges.

McKAY, Circuit Judge.

1

Mr. Prieto-Duran appeals the imposition of a seventy-two-month sentence for drug offenses. The sentence was pursuant to a valid plea agreement, or Memorandum of Understanding, under Fed.R.Crim.P. 11(e)(1)(c). According to 18 U.S.C. Sec. 3742(c), "In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(c) of the Federal Rules of Criminal Procedure a defendant may not file a notice of appeal under paragraph (3) ... unless the sentence imposed is greater than the sentence set forth in such agreement." Paragraph (3) provides that a defendant may appeal a sentence which "is greater than the sentence specified in the applicable guideline range." Mr. Prieto-Duran received seventy-two months, a sentence to which he specifically agreed. He is complaining because the sentencing guidelines specified a range of sixty to sixty-three months for the offenses to which he pled. However, pursuant to the plea agreement, the government agreed to forego filing a sentence enhancement information for prior criminal activities under 21 U.S.C. Sec. 851. This enhancement would have required a ten-year term of imprisonment. This is precisely the type of appeal which is barred by 18 U.S.C. Sec. 3742(c)(1). See United States v. Bolinger, 940 F.2d 478 (9th Cir.1991); United States v. David, 967 F.2d 592 (9th Cir.1992) (unpublished opinion). We have no jurisdiction to review the trial court's imposition of sentence in this matter. Accordingly, the appeal is dismissed.

2

After review, we have concluded that defendant's counsel properly filed an Anders brief in this case. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Prieto-Duran has filed a response to the Anders brief. We have considered his arguments and found them to be without merit. In addition, because there is no basis for an appeal, appellant's motion for appointment of new counsel is denied. Counsel's request for leave to withdraw is granted.

3

DISMISSED.

*

The parties have agreed that this case may be submitted for decision on the briefs. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1.2. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case therefore is ordered submitted without oral argument