United States v. Garcia-Fuentes ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 12, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-1453
v. (D. Colorado)
JA IM E H U MB ER TO G A RC IA - (D.C. No. 04-cr-00471-W DM )
FUEN TES,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Defendant Jaime Humberto Garcia-Fuentes pleaded guilty to possession
with intent to distribute 50 grams or more of methamphetamine. See 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(viii). The district court sentenced him to a statutory
mandatory minimum 60 months’ imprisonment, followed by 4 years’ supervised
release. On appeal his court-appointed counsel filed an Anders brief and moved
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the party’s request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967).
Defendant Garcia-Fuentes was given until M ay 18, 2007, to file a response to
counsel’s brief, but did not do so. W e sua sponte extended his time to respond to
June 29, 2007, but again he failed to respond. The government declined to file a
brief. W e grant counsel’s motion to withdraw and dismiss the appeal.
On November 15, 2004, a grand jury from the U nited States D istrict Court
for the D istrict of C olorado handed down a two-count indictment against
Defendant G arcia-Fuentes. Count One charged him with possession with intent to
distribute 50 grams or more of a substance containing methamphetamine; Count
Two charged him with unlawful reentry of a deported alien. See 8 U.S.C.
§ 1326(a)(2). Under a plea agreement with the government Defendant Garcia-
Fuentes agreed to plead guilty to Count One; in return the government agreed to
seek no additional charges and to dismiss Count Two. Defendant Garcia-Fuentes
and the government stipulated under Federal Rule of Criminal Procedure
11(c)(1)(C) to a sentence of not more than 60 months’ imprisonment.
On June 16, 2006, Defendant Garcia-Fuentes entered his plea. In the plea
agreem ent he admitted to the following description of the offense: On
October 30, 2004, he received a phone call from Jerry Padilla seeking four ounces
of methamphetamine for resale to a person who turned out to be an undercover
officer. After a series of phone calls the parties agreed that Padilla and Defendant
Garcia-Fuentes would meet at M ichael Pagel’s house and then proceed to a
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prearranged location to sell the drugs to the undercover officer. At Pagel’s house
Defendant Garcia-Fuentes gave Padilla the four ounces of methamphetamine
wrapped in a baby diaper. The three men then proceeded to the prearranged
location; Padilla rode with Pagel, and Defendant Garcia-Fuentes followed. At the
designated location Pagel and Padilla sold the drugs to the undercover officer for
$5,000 and were immediately arrested. Upon Padilla and Pagel’s arrest,
Defendant Garcia-Fuentes left the scene. He was later stopped and his vehicle
searched. The searching officers discovered baby diapers identical to the one
enclosing the drugs. Padilla and Pagel admitted their guilt, and Padilla implicated
Defendant Garcia-Fuentes.
The district court, in accordance with the plea agreement, sentenced
Defendant Garcia-Fuentes to the statutory minimum 60 months’ imprisonment
and 4 years’ supervised release. Defendant Garcia-Fuentes filed a pro se appeal.
In Anders the Supreme Court held that a court-appointed defense counsel
may “request permission to withdraw [from an appeal] 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). To
this end, counsel must
submit a brief to the client and the appellate court indicating any
potential appealable issues based on the record. The client may then
choose to submit arguments to the court. The [c]ourt must then
conduct a full examination of the record to determine whether
defendant’s claims are wholly frivolous. If the court concludes after
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such an examination that the appeal is frivolous, it may grant
counsel’s motion to withdraw and may dismiss the appeal.
Id. (citations omitted).
In his Anders brief Defendant Garcia-Fuentes’s counsel contends that there
is no legally cognizable issue on appeal. Defendant Garcia-Fuentes has not filed
a response. W e can discern no meritorious issues for appeal. Based on the
admissions by Defendant Garcia-Fuentes, the district court could not have
imposed a lower sentence. See United States v. Payton, 405 F.3d 1168, 1173
(10th Cir. 2005) (“no constitutional error in sentencing . . . [to] the mandatory
minimum sentence”). And both the plea agreement and the plea colloquy show
that Defendant Garcia-Fuentes’s guilty plea was entered knowingly, voluntarily,
and intelligently. See United States v. Hurlich, 293 F.3d 1223, 1230 (10th
Cir.2002) (“A defendant’s guilty plea must be knowing, voluntary, and
intelligent.”).
W e GRANT counsel’s motion to withdraw and DISM ISS this appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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