United States v. Jose Luis Prieto-Duran

39 F.3d 1119, 1994 U.S. App. LEXIS 31242, 1994 WL 617548

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 8, 1994
• Docket: 94-2071
• Status: Published

Opinion

McKAY, Circuit Judge.

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. § 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. § 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. § 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 See United States v. Bolinger, 940 F.2d 478 (9th Cir.1991); United States v. David, 967 F.2d 592 (9th Cir.1992) (unpublished opinion).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.

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.

DISMISSED.