UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT EDWARD JONES, JR. a/k/a Poochie,

Defendant-Appellant.

No. 00-6252

(W.D. Okla.)

(D.Ct. No. CR-99-121-T)
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ORDER AND JUDGMENT*

Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and ROGERS,** District Judge.

Robert Edward Jones, Jr. was originally indicted for several drug-related offenses. Pursuant to a plea agreement with the government, Mr. Jones pled guilty to one count of conspiracy to distribute cocaine base (crack), in violation of 21 U.S.C. § 846. Mr. Jones appeals from the district court's order denying his motion to withdraw his guilty plea. He also claims the district court erred in refusing to appoint substitute counsel before his sentencing. Finally, Mr. Jones argues there was insufficient evidence of the drug amount attributed to him at sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.1 We affirm in part and dismiss in part.

After receiving his presentence report and prior to sentencing, Mr. Jones filed a motion to withdraw his guilty plea. At the hearing on the motion, he argued he did not knowingly and voluntarily enter into the plea agreement. Mr. Jones' attorney also filed a motion to withdraw as counsel. After hearing from Mr. Jones, his counsel and the prosecutor, the district court issued orders denying both motions.

At the outset, the government argues for dismissal of this appeal because the plea agreement includes a waiver of Mr. Jones' right to appeal. A knowing and voluntary waiver of the statutory right to appeal is generally enforceable by this court. United States v. Black, 201 F.3d 1296, 1300 (10th Cir. 2000). However, Mr. Jones has consistently argued he did not knowingly and voluntarily enter into the plea agreement, thereby challenging the validity of the plea agreement.

The validity of a waiver-of-appeal provision hinges on the validity of the plea agreement. Id. at 1299. Therefore, we will consider the issues Mr. Jones raised in the motion to withdraw his guilty plea and which he raises again on appeal. Compare id. (reviewing the merits of a claim defendant did not knowingly and voluntarily enter into plea agreement) with United States v. Elliott, 264 F.3d 1171, 1174-75 (10th Cir. 2001) (enforcing waiver and dismissing appeal when defendant did "not allege that he did not knowingly and voluntarily accept the appellate waiver") and United States v. Atterberry, 144 F.3d 1299, 1300-01 (10th Cir. 1998) (dismissing appeal when defendant did "not contend his agreement to the appeal waiver was unknowing or involuntary").

When a motion to withdraw a guilty plea is made before sentencing, the district court may permit withdrawal of the plea for "any fair and just reason." Fed. R. Crim. P. 32(e). We review a district court's order denying withdrawal of a plea for an abuse of discretion. Black, 201 F.3d at 1300. Mr. Jones bears the burden of demonstrating a "fair and just reason" for withdrawal of his plea. Black, 201 F.3d at 1299. Mr. Jones argues he did not have sufficient time to confer with his attorney regarding the plea agreement and consequently, did not understand the agreement. He articulates two misconceptions: (1) he believed the government's agreement not to seek an enhancement pursuant to 21 U.S.C. § 851 precluded the use of prior convictions to enhance his sentence; and (2) he believed he would be allowed to dispute the drug amounts in the plea agreement at his sentencing hearing. The district court's nine-page order denying the motion to withdraw the guilty plea carefully and properly analyzed the appropriate factors articulated by our case law.2 Therefore, we affirm the order denying the motion to withdraw the guilty plea for substantially the same reasons articulated by the district court.

Next, Mr. Jones argues the district court should have allowed him to substitute counsel before sentencing. We dismiss this argument because Mr. Jones' plea agreement waived his right to appeal. Although a waiver should not be used "to deny review of a claim that the agreement was entered into with ineffective assistance of counsel," Black, 201 F.3d at 1301, Mr. Jones never argued his counsel was ineffective. Mr. Jones merely sought substitute counsel. See United States v.Mendoza-Salgado, 964 F.2d 993, 1015 (10th Cir.1992) (quoting Wheat v. United States, 486 U.S. 153, 159 (1988)) (Sixth Amendment guarantees an effective advocate, not the lawyer the defendant prefers). Therefore, his claim does not raise public policy concerns which might preclude us from enforcing the waiver. See id. The same holds true for Mr. Jones' insufficient evidence claim. Because Mr. Jones entered into the plea agreement knowingly and voluntarily and no public policy concerns constrain us from enforcing the waiver of appeal, we dismiss his remaining claims.3 Black, 201 F.3d at 1301, 1303.

Accordingly, we AFFIRM the district court's denial of Mr. Jones' motion to withdraw his guilty plea, and we DISMISS the remaining issues in his appeal.

Entered by the Court:

WADE BRORBY

United States Circuit Judge