United States v. Scroger , 73 F. App'x 344 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 11 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 02-3388
v. (D. Kansas)
JAMES SCROGER, (D.C. No. 02-CR-20043-01-JWL)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL, HENRY, and HARTZ, Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
James Scroger appeals from his conviction and sentence for attempting to
manufacture five or more grams of methamphetamine. Mr. Scroger’s counsel
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and moves for
leave to withdraw as counsel. For the reasons set out below, we grant counsel’s
motion to withdraw and dismiss the appeal.
Mr. Scroger was charged in a three count indictment with one count of
attempting to manufacture 5 grams or more of methamphetamine, one count of
conspiring to manufacture 5 grams or more of methamphetamine, and one count
of making available for use a building for the unlawful manufacture of
methamphetamine. Mr. Scroger entered into a plea agreement pursuant to which
he agreed to plead guilty to Count 1 (attempting to manufacture 5 grams or more
of methamphetamine) in exchange for the government’s agreement to dismiss the
two remaining counts and to a sentence of ninety-seven months’ imprisonment.
The trial court accepted both the guilty plea and the plea agreement.
Anders holds that if counsel finds a case to be wholly frivolous after
conscientious examination, he may advise the court and request permission to
withdraw. Counsel must also submit to both the court and his client a brief
referring to anything in the record arguably supportive of the appeal. The client
may then raise any point he chooses, and the court thereafter undertakes a
complete examination of all proceedings and decides whether the appeal is in fact
frivolous. If it so finds, it may grant counsel’s request to withdraw and dismiss
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the appeal. See Anders, 386 U.S. at 744. Mr. Scroger has not filed an additional
appellate brief.
It is important to note at the outset that Mr. Scroger entered guilty plea on
Count 1 of the indictment and he has thereby waived his rights to appeal any
non-jurisdictional issues or antecedent constitutional defects. See, e.g., United
States v. Dwyer, 245 F.3d 1168, 1170 (10th Cir. 2001).
Mr. Scroger did not file a response to the Anders brief and the government
did not file a reply brief. Counsel also notes that, in his plea agreement, Mr.
Scroger specifically waived his right to appeal his sentence unless it exceeded the
statutory maximum. Counsel notes that the sentence did not exceed the statutory
maximum and that the sentence was not based on the defendant’s race or other
impermissible factor. See United States v. Cockerham, 237 F.3d 1179, 1182 (10th
Cir. 2001). As to a potential ineffective assistance of counsel claim, counsel
notes he would have a conflict in arguing ineffective assistance. We also note
that “[i]neffective assistance of counsel claims should be brought in collateral
proceedings, not on direct appeal.” United States v. Galloway, 56 F.3d 1239,
1240 (10th Cir. 1995).
To avoid dismissal of his appeal, Mr. Scroger must show why we should
not enforce the plea agreement. United States v. Rubio, 231 F.3d 709, 711 (10th
Cir. 2000). During the plea colloquy, the district court informed Mr. Scroger
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about the consequences of entering , and specifically outlined the waiver of the
right to appeal. Mr. Scroger responded that he understood the plea agreement and
that he entered into the agreement voluntarily. After careful review of the entire
proceedings, we agree with counsel that no non-frivolous grounds for appeal
appear on this record. We see nothing in the record to indicate that Mr. Scroger’s
guilty plea was not knowing and voluntary, nor do we discern any error in the
district court’s acceptance of the plea or in the terms of the plea agreement.
Moreover, Mr. Scroger was sentenced within statutory limits. Hence, there are no
sentencing issues for appeal.
Accordingly, we GRANT counsel’s request to withdraw and we DISMISS
the appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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