United States vs. Miranda, No. 05-1103 (10th Cir. 2007)

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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. ยงยง 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 Although the * This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. -2- 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. -3- 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. -4-

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