Opinion
D.C. No. CR-02-00125-FRZ. United States Court of Appeals, Ninth Circuit. October 23, 2003
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Appeal from the United States District Court for the District of Arizona, Frank R. Zapata, District Judge, Presiding.
Before WARDLAW, BERZON, and CLIFTON, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Joseph Anthony Gonzales appeals his guilty-plea conviction and 144-month sentence for one count of possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a). Gonzales's attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and has moved to withdraw as counsel of record on the ground that he failed to discover any arguable issues on appeal.
Gonzales filed a pro se supplemental brief, contending that his guilty plea was not knowing and voluntary, in light of United States v. Minore, 292 F.3d 1109 (9th Cir.2002) (concluding that district court must instruct that drug quantity is an element which the government must prove beyond a reasonable doubt). Because appellant has failed to show that the issue was raised below, we review for plain error. Id. at 1117. We apply the four-part test for plain error, and conclude that, in light of appellant's unequivocal admissions and the overwhelming evidence of the drug quantity in question, it is not unfair to hold appellant to his guilty plea. See id. at 1120. Accordingly, we find appellant's guilty plea was valid.
We enforce the appellant's waiver of his right to appeal in his plea agreement, because his sentence does not exceed the applicable guideline range.
Appellee's August 20, 2003 motion to dismiss pursuant to the valid appeal waiver in the plea agreement is GRANTED. Accordingly, we do not reach the merits of appellant's other contentions raised in his pro se brief. Counsel's motion to withdraw is GRANTED, and this appeal is DISMISSED.