United States v. Bojorquez-Gastelum ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 29 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-1061
(D.C. No. 99-CR-107-B)
ROBERTO BOJORQUEZ- (D. Colo.)
GASTELUM, also known as
Roberto Bojoroques, also known as
Roberto Bojorquez,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON and BALDOCK , Circuit Judges, and BRORBY ,
Senior Circuit Judge.
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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Roberto Bojorquez-Gastelum appeals the sentence imposed
pursuant to his guilty plea to the charges of possession with intent to distribute
methamphetamine and aiding and abetting. The mandatory minimum sentence
under the United States Sentencing Guidelines was 120 months. The government
filed a motion pursuant to USSG § 5K1.1, recommending a reduction to
84 months. The district court adopted the recommendation and imposed
a sentence of 84 months. Defendant appeals his sentence.
Mr. Bojorquez-Gastelum decided to plead guilty on the eve of his trial.
He was scheduled to be tried on Count II of the indictment, but he entered a guilty
plea to that count. On appeal, his attorney submitted a motion to withdraw
supported by a brief filed pursuant to Anders v. California , 386 U.S. 738 (1967),
asserting, after conscientious examination, that this appeal is wholly frivolous.
As required, copy of counsel’s Anders brief and motion to withdraw were
provided to Mr. Bojorquez-Gastelum, see id. at 744, and he filed a pro se brief,
raising several issues. This court has fully considered his pro se pleadings in
resolving this appeal.
Mr. Bojorquez-Gastelum argues (1) his sentence was illegally enhanced by
the amount of methamphetamine involved, 1,292.3 grams, even though the count
to which he entered a guilty plea did not specify a quantity of drugs; (2) his
sentence was longer than sentences imposed on others charged in the same drug
conspiracy; (3) his sentence should have been reduced by two levels to account
for his minor role in the offense; and (4) his attorney’s assistance in this appeal
was constitutionally ineffective.
“This court reviews the district court’s legal conclusions under the
Sentencing Guidelines de novo and its factual findings for clear error, affording
great deference to the district court’s application of the Guidelines to the facts.”
United States v. Eaton , No. 00-1276, 2001 WL 912756, at *2 (10th Cir. Aug. 14,
2001). We will construe liberally defendant’s pro se briefs and hold them to
a less stringent standard than briefs prepared by attorneys. Haines v. Kerner ,
404 U.S. 519, 520-21 (1972). We have conducted “a full examination of all the
proceedings.” Anders , 386 U.S. at 744.
Mr. Bojorquez-Gastelum cannot prevail on his argument that because Count
II did not specify an amount of methamphetamine, his sentence was improperly
based on 1,292.3 grams. He stipulated to that amount at his plea hearing.
Moreover, the amount was an element of the offense, not a sentence enhancer.
See 21 U.S.C. § 841(b); Appellee’s App. at 32 (Indictment, Count II, charging
violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(viii)).
Mr. Bojorquez-Gastelum next objects to the length of his sentence
compared to others charged in the same drug conspiracy, based on his
comparatively minor role. He also argues that as a cooperating witness, he should
have received a shorter sentence. Different sentences for coconspirators are
permissible when they are based on differences in sentencing factors, such as
degree of participation in the crime and criminal history. United States v. Maden ,
114 F.3d 155, 159 (10th Cir. 1997). Mr. Bojorquez-Gastelum’s unsupported
claim that he received a harsher sentence than others is too conclusory for
appellate review. Scott v. Hern , 216 F.3d 897, 910 n.7 (10th Cir. 2000).
Furthermore, for his cooperation with the government, Mr. Bojorquez-Gastelum
received a reduction from a mandatory minimum sentence of 120 months to
84 months. Therefore, no sentencing error occurred.
Mr. Bojorquez-Gastelum also maintains that the district court should have
reduced his sentence by two levels for his minor role in the offense. We are
without jurisdiction to review his challenge to the district court’s refusal to depart
downward. United States v. Saffo , 227 F.3d 1260, 1271 (10th Cir. 2000) (absent
clear indication that district court misunderstood discretion to depart or imposed
illegal sentence, appellate court has no jurisdiction to review refusal to depart
downward), cert. denied , 121 S. Ct. 1608 (2001). Even so, as the district court
explained, given the government’s request to reduce his sentence to 84 months,
the requested two-level downward departure to a sentencing range of 87 to 108
months would not have affected the sentence imposed.
Finally, Mr. Bojorquez-Gastelum alleges that his attorney’s failure to
raise any issues on appeal constituted constitutionally ineffective assistance.
As indicated, the attorney filed an Anders brief, alleging no appealable issues.
Claims of ineffective assistance of counsel generally should be brought in a
post-conviction proceeding. Beaulieu v. United States , 930 F.2d 805, 806-07
(10th Cir. 1991), overruled on other grounds by United States v. Galloway ,
56 F.3d 1239, 1241 (10th Cir. 1995) (en banc). Here, we cannot effectively
address this claim because the district court did not have an opportunity to rule
on it and the record on appeal is limited to sentencing issues. See Galloway ,
56 F.3d at 1240. Under the circumstances, Mr. Bojorquez-Gastelum’s ineffective
assistance of counsel claim will be dismissed without prejudice.
The motion to withdraw filed by defendant’s attorney, Normando R.
Pacheco, is granted. Upon de novo review of the parties’ briefs and the entire
record on appeal, we conclude that the record demonstrates no non-frivolous
appellate issues. Mr. Bojorquez-Gastelum’s claim of ineffective assistance of
counsel is dismissed without prejudice. The sentence is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge