OpenJurist

982 F2d 530 United States v. Perez-Payan

982 F.2d 530

UNITED STATES of America, Plaintiff-Appellee,
v.
Manuel PEREZ-PAYAN, Defendant-Appellant.

No. 92-2060.

United States Court of Appeals, Tenth Circuit.

Dec. 9, 1992.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before SEYMOUR, STEPHEN H. ANDERSON and EBEL, Circuit Judges.*

ORDER AND JUDGMENT**

EBEL, Circuit Judge.

1

This is a direct criminal appeal in which the appellant complains about his 33-month sentence which was admittedly at the lower end of the appropriate sentencing guideline range. Appellant raises no argument that the sentence was illegal or that it was an incorrect application of the guidelines. Accordingly, we have no jurisdiction to consider this appeal. United States v. Garcia, 919 F.2d 1478, 1481 (10th Cir.1990).

2

The appeal is DISMISSED.1 The mandate shall issue forthwith.

*

Neither side has requested oral argument in this case. We unanimously agree that oral argument could not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. Therefore, we consider this appeal on the briefs

**

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3

1

Appellant's counsel submitted an Anders brief, and appellant himself filed a notice of withdrawal of the appeal "in order to leave open a later possible appeal." Because a convicted defendant has only one direct criminal appeal and because that right must be timely asserted, granting appellant's notice of withdrawal would not preserve his right to a later possible direct appeal. Because appellant's notice of withdrawal appears to have been contingent in nature and suggests a contingency which cannot be preserved, we determined it was best simply to address this appeal on its merits and to dismiss for lack of jurisdiction