United States v. Cano ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALSJanuary 16, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 12-8035
v. (D.C. No. 2:10-CR-00276-NDF-1)
(D. Wyo.)
ARMANDO JUAN CANO,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.
After his convictions for attempted carjacking and discharging a firearm
during a crime of violence, Armando Juan Cano was sentenced to 57 months for
the first crime and 120 months for the second, the terms to run consecutively.
Mr. Cano appealed, but this court rejected all his arguments save one: we held
that Mr. Cano’s carjacking sentence was procedurally unreasonable because it
was premised on an erroneous understanding of the relevant guidelines range.
*
After examining the briefs and the 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) and 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order and judgment is not binding precedent except under the doctrines of law of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.
See United States v. Cano, 468 F. App’x 863, 868-69 (10th Cir. 2012)
(unpublished). On remand, the district court took note and resentenced Mr. Cano
to forty-one months imprisonment for the carjacking conviction, a term of
imprisonment within the correctly calculated guidelines range.
Now the case has returned to us. This time, Mr. Cano’s attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), advising that he
discerns no colorable basis for an appeal and seeking leave to withdraw. Anders
authorizes a defendant’s lawyer to seek permission to withdraw from an appeal if,
“after a conscientious examination,” the lawyer finds the appeal “wholly
frivolous.” Id. at 744. Invoking Anders requires the lawyer to “submit a brief to
the client and the appellate court indicating any potential appealable issues based
on the record.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005)
(citing Anders, 386 U.S. at 744). The client may then submit his own arguments
for the court’s consideration. Id. And we must then “conduct a full examination
of the record to determine whether [the] defendant’s claims are wholly frivolous.”
Id. If they are, we may grant counsel’s motion to withdraw and dismiss the
appeal. Id.
In his Anders brief, Mr. Cano’s counsel identifies four potential points of
appeal in this case but represents that all lack merit. Mr. Cano has submitted a
filing of his own touching on these same points but arguing they do possess merit.
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For its part, the government has filed a response agreeing with defense counsel’s
analysis. After our own independent review we do as well.
Defense counsel’s Anders brief correctly indicates that this court has
already resolved three of Mr. Cano’s potential points of appeal. In Mr. Cano’s
first appeal, this court held there was no merit to Mr. Cano’s contention that the
district court improperly applied a one-level increase under U.S. Sentencing
Guideline § 2B3.1(b)(7)(B). See Cano, 468 F. App’x at 868. We rejected his
argument that mandatory minimum sentences are unconstitutional. Id. And we
explained that Mr. Cano’s ineffective assistance of counsel claim should be
pursued in a habeas petition not a direct appeal. Id. at 867. These decisions have
become the law of the case. United States v. Webb, 98 F.3d 585, 587 (10th Cir.
1996).
Separately, the Anders brief correctly notes that Mr. Cano’s final potential
point of appeal, while new, is also meritless. Mr. Cano would like to argue that
the district court should have departed downward from the guidelines because of
diminished capacity because of drug dependence and strong family ties and
responsibilities. See U.S. Sentencing Guidelines Manual §§ 5H1.4, 5K2.13,
5H1.3, 5H1.6. But because Mr. Cano didn’t raise this argument before the district
court, we could review this claim only for plain error, which occurs “when there
is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4)
seriously affects the fairness, integrity, or public reputation of judicial
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proceedings.” United States v. Gonzales-Huerta, 403 F.3d 727, 732 (10th Cir.
2005) (en banc). The record before us contains some evidence of Mr. Cano’s
rehabilitation efforts since he was incarcerated. But the record is by no means
overwhelming and it is in no way plain that the district court abused its discretion
by refusing to grant the requested downward departures. On the record we have
we simply cannot disagree with defense counsel’s analysis that pursuing this line
of attack would be pointless.
Counsel’s motion to withdraw is granted and this appeal is dismissed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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