United States v. Miranda , 222 F. App'x 748 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 23, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 05-1103
v. (D. Colorado)
LU IS A N TO N IO M IR AN D A , (D.C. No. 94-CR-204-RB)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
After examining the briefs and appellate record, this court 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.
On July 20, 1994, defendant-appellant Luis Carlos M iranda was charged in
a one-count indictment with conspiracy to possess with intent to distribute
marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Although the
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
indictment indicated the alleged offense ended on December 1, 1989, a warrant
for M iranda’s arrest was not issued until July 20, 1994. M iranda was not arrested
until November 18, 2003. Pursuant to a plea agreement entered into between
M iranda and the government, M iranda pleaded guilty to a lesser included offense.
He was sentenced to time served and two years’ supervised release. M iranda
filed a timely Notice of Appeal.
M iranda’s counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), advising this court that M iranda’s appeal is wholly frivolous.
Accordingly, counsel also sought permission to w ithdraw . Under Anders, counsel
may “request permission to w ithdraw where counsel conscientiously examines a
case and determines that any appeal would be wholly frivolous.” United States v.
Calderon, 428 F.3d 928, 930 (10th Cir. 2005). Counsel is required to submit an
“appellate brief indicating any potential appealable issues.” Id. Once notified of
counsel’s brief, the defendant may then submit additional arguments to this court.
Id. W e “must then conduct a full examination of the record to determine whether
defendant’s claims are wholly frivolous.” Id. M iranda was given notice of the
Anders brief and counsel’s motion to withdraw. M iranda responded by
submitting two letters which this court construes as his response to the notice.
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Our conclusions, therefore, are based on counsel’s Anders brief, M iranda’s
response, and our own review of the record. 1
A guilty plea may be set aside on direct appeal if it was not knowing and
voluntary. See United States v. Asch, 207 F.3d 1238, 1242 (10th Cir. 2000). In
his Anders brief, M iranda’s counsel asserts there is no basis for a challenge to
M iranda’s guilty plea. M iranda, who is a citizen of M exico, argues his plea was
not knowing and voluntary because his attorney failed to advise him of the
immigration consequences of his conviction. M iranda’s argument is easily
rejected by applying our well-established precedent that “there is no requirement
that a defendant be advised of all potential collateral consequences of a guilty
plea in order for that plea to be voluntary, knowing, and intelligent.” United
States v. Krejcarek, 453 F.3d 1290, 1296 (10th Cir. 2006); Varela v. Kaiser, 976
F.2d 1357, 1358 (10th Cir. 1992). M iranda also raises several challenges to his
preconviction proceedings, including allegations he was extradited “from Arizona
to Colorado without a grand jury,” he was denied a bond hearing, he was denied
his right to a speedy trial, and he was not indicted until after the statute of
limitations had run. W e have repeatedly held that an unconditional plea of guilty
1
This court has sua sponte supplemented the record on appeal with the
indictment, the plea agreement, and M iranda’s m otion to dismiss together w ith
the Government’s response thereto.
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waives all nonjurisdictional defects and defenses. 2 See United States v. Davis,
900 F.2d 1524, 1525-26 (10th Cir. 1990). The alleged errors identified by
M iranda do not involve jurisdictional questions and, thus, none can provide a
basis for reversing M iranda’s conviction. See, e.g., United States v. Gallup, 812
F.2d 1271, 1280 (10th Cir. 1987) (holding statute of limitations is an affirmative
defense that must be asserted by a criminal defendant); United States v. Andrews,
790 F.2d 803, 810 (10th Cir. 1986) (“The Speedy Trial Act is not jurisdictional in
nature.”).
The only other possible basis for M iranda’s appeal must relate to his
sentence. M iranda, however, concedes in his response that he is not challenging
his sentence. Because our review of the record reveals no other claims arguable
on their merits, we conclude M iranda’s appeal is wholly frivolous. Accordingly,
counsel’s motion to w ithdraw is granted and this appeal is dismissed.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
2
The district court considered and denied M iranda’s motion seeking
dismissal of the indictment based on allegations of post-indictment delay and
denial of a speedy trial.
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