United States v. Pinon-Ayon , 438 F. App'x 722 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
September 21, 2011
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 10-8106
v. (D. Wyoming)
GILBERTO PINON-AYON, (D.C. No. 1:09-CR-00210-ABJ-2)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
After a jury trial in the United States District Court for the District of
Wyoming, Defendant Gilberto Pinon-Ayon was convicted of a methamphetamine
conspiracy and sentenced to 121 months’ imprisonment. He appealed and we set
aside the sentence. On remand the district court imposed the same sentence.
Defendant has filed a notice of appeal to challenge his sentence on remand.
Defense counsel, finding no meritorious issue for appeal, has submitted an Anders
*
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. 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not binding precedent except under the doctrines of law of the case, res judicata,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.
brief and a motion for leave to withdraw. See Anders v. California, 386 U.S. 738(1967). Defendant has been provided with a copy of the brief, see id. at 744(defendant must be given a copy of the Anders brief and provided time to
respond), but has filed no response with this court. We have jurisdiction under
28 U.S.C. § 1291. Agreeing that there are no meritorious issues for appeal, we
grant counsel’s motion to withdraw and dismiss the appeal.
I. BACKGROUND
Defendant was indicted on one count of conspiracy to possess with intent to
distribute, and to distribute, more than 50 grams of a substance containing a
detectable amount of methamphetamine, see 21 U.S.C §§ 846; 841(a)(1),
(b)(1)(B), and one count of possession with intent to distribute more than 50
grams of a substance containing a detectable amount of methamphetamine, see id.
§ 841(a)(1), (b)(1)(B). At trial he acknowledged that he had agreed to drive
Rosalio Pedraza-Leon to Cheyenne, Wyoming, and that Pedraza brought along a
bag that he asked Defendant to hide in the truck. But he asserted that he did not
know that the bag contained methamphetamine. The jury found Defendant guilty
on the conspiracy charge but not guilty on the possession charge.
When determining the total quantity of methamphetamine for which
Defendant was responsible under the Sentencing Guidelines, the district court
included several prior drug transactions that Pedraza claimed to have conducted
with Defendant, thereby increasing the amount of methamphetamine from 451
-2-
grams (the amount found when Defendant was arrested) to 1046.35 grams, which
raised the base offense level from 30 to 32. See USSG § 2D1.1(a)(5), (c)(4),
(c)(5). The district court also imposed a two-level enhancement for obstruction of
justice under USSG § 3C1.1 without making specific findings that the Defendant
had willfully impeded or obstructed justice. See United States v. Dunnigan, 507
U.S. 87, 95 (1993) (district court must make independent findings necessary to
establish that defendant obstructed justice by testifying at trial). The offense
level of 34 and Defendant’s criminal-history category of III resulted in a
guideline sentencing range of 188 to 235 months. See USSG ch. 5, pt. A. The
district court, however, varied downward four levels and imposed a sentence of
121 months.
Defendant appealed his sentence, challenging the consideration of the
additional methamphetamine and the obstruction enhancement. The government
conceded the Dunnigan error and moved to vacate Defendant’s sentence and
remand for resentencing. See United States v. Pinon-Ayon, 392 F. App’x 648,
648 (10th Cir. 2010). We granted the motion. See id.On remand the government informed the district court that it no longer
sought an obstruction-of-justice enhancement or a drug-quantity increase based on
Pedraza’s statements. As a result, Defendant had a base offense level of 30 and a
sentencing range of 121 to 151 months. See USSG § 2D1.1(a)(5), (c)(5); id. ch.
5, pt. A. Defense counsel argued that the court should again vary downward four
-3-
levels and impose a sentence in the range of 78 to 97 months. See 21 U.S.C.
§ 841(b)(1)(B)(viii). The court, however, imposed the same 121-month sentence
it had imposed previously.
II. DISCUSSION
Under Anders if an attorney examines a case and determines that an appeal
desired by his client would be “wholly frivolous,” counsel may “so advise the
court and request permission to withdraw.” 386 U.S. at 744. Counsel must
submit a brief to both the appellate court and the client, pointing to anything in
the record that could potentially present an appealable issue. See id. The client
may then choose to offer argument to the court. See id. If, upon close
examination of the record, the court determines that the appeal is frivolous, it may
grant counsel’s request to withdraw and dismiss the appeal. See id.After conducting an independent examination of the record, we agree with
counsel’s conclusion that no conceivably meritorious basis for appeal exists.
Defendant’s main contention at sentencing and on appeal appears to be that he
deserves a shorter sentence than Pedraza’s 120-month sentence because Pedraza
was a drug-dealer with an extensive criminal record whereas Defendant was just a
mule. But a sentence within a properly calculated guideline sentencing range is
presumptively reasonable, and Defendant must rebut this presumption “by
demonstrating that the sentence is unreasonable in light of the other sentencing
factors laid out in [18 U.S.C.] § 3553(a).” United States v. Kristl, 437 F.3d 1050,
-4-
1055 (10th Cir. 2006). Although some factors suggest that Pedraza should have
received a longer sentence than Defendant, Pedraza, unlike Defendant, accepted
responsibility for his crimes and provided assistance to the government. Through
two sentencing hearings the district court maintained that 121 months’
imprisonment was the proper sentence for Defendant’s actions, and there is
nothing in those hearings that rebuts the presumption of reasonableness.
III. CONCLUSION
We GRANT defense counsel’s motion to withdraw and DISMISS the
appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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