United States v. Nicole Puller , 285 F. App'x 538 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 16, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-1397
v. (D.C. No. 06-CR-244-EWN)
(D. Colo.)
NICOLE PULLER,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.
Defendant-Appellant Nicole Puller pled guilty to (1) violating 18 U.S.C. §§
1343 and 2, Wire Fraud and Aiding and Abetting, and (2) violating 18 U.S.C. §§
1957 and 2, Money Laundering and Aiding and Abetting. Puller now appeals,
raising issues with respect to her sentence as well as the district court’s denial of
her motion to suppress. Puller’s counsel filed a brief pursuant to Anders v.
*
After examining appellant’s brief 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order and judgment is not binding precedent, except under the doctrines of law of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.
California, 386 U.S. 738 (1967), and moved for leave to withdraw; Puller
submitted a supplemental brief on her own behalf. Having considered each, we
grant counsel’s motion to withdraw and dismiss this appeal.
I. BACKGROUND
Most generally, Puller was one of seven people indicted for participating in
a mortgage fraud scheme. As stipulated in Puller’s plea agreement, the conduct
that gave rise to her indictment occurred in the fall of 2004. It was at that time
that Puller, having assumed the identity of Shanae Garner, purchased residential
properties using a fake Colorado driver’s license along with the social security
number of the true Shanae Garner. The lenders that financed Puller’s purchases
were unaware of her true identity and were similarly unaware of the many false
representations that Puller made on each of her loan applications.
Puller moved to suppress much of the evidence that the government had
obtained against her. The district court denied her motion, and thereafter, Puller
entered into an unconditional plea agreement with the government under which
she agreed to plead guilty to two charges: (1) violating 18 U.S.C. §§ 1343 and 2,
Wire Fraud and Aiding and Abetting, and (2) violating 18 U.S.C. §§ 1957 and 2,
Money Laundering and Aiding and Abetting. For its part, the government agreed
(1) not to pursue additional charges against Puller, (2) to move to dismiss the
remaining charges against her, (3) to move for a one-point offense level reduction
pursuant to U.S.S.G. § 3E1.1(b), and (4) to recommend a sentence “no higher than
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the mid-range of the applicable sentencing guideline range.” Under the explicit
terms of the plea agreement, however, “[t]he Government intend[ed] to argue that
[Puller] [was] not entitled to any reduction in sentence for cooperation.”
Having accepted Puller’s guilty plea, the district court determined that her
total offense level was 17 and that her criminal history category was III. Puller’s
total offense level coupled with her criminal history category resulted in a
guideline sentence range of 30 to 37 months’ imprisonment. The district court
sentenced her at the middle-end of that range: 34 months. In doing so, the court
explicitly rejected Puller’s argument that she should receive a lower sentence
based on her cooperation with authorities. Puller now appeals.
II. DISCUSSION
In Anders, the Supreme Court held that “if counsel finds his case to be
wholly frivolous, after a conscientious examination of it, he should so advise the
court and request permission to withdraw.” 386 U.S. at 744. This court “must
then conduct a full examination of the record to determine whether defendant’s
claims are wholly frivolous. If [we] conclude [ ] after such an examination that
the appeal is frivolous, [we] may grant counsel’s motion to withdraw and may
dismiss the appeal.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir.
2005).
Counsel’s brief appears to identify two potential issues for appeal: (1) the
government’s refusal to file a substantial-assistance motion pursuant to U.S.S.G.
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§ 5K1.1, and (2) the reasonableness of Puller’s sentence. In addition to counsel’s
brief, Puller has filed a supplemental brief asserting that the government should
have filed a § 5K1.1 motion on her behalf, and that the district court erred in
denying her motion to suppress. Along with this brief, Puller has filed a motion
for resentencing pursuant to 18 U.S.C. § 3582(c)(2), which purports to have been
filed in “The United States District Court for the Tenth Circuit District of
Colorado.” Each of these matters will be considered in turn.
A. U.S.S.G. § 5K1.1
Pursuant to U.S.S.G. § 5K1.1, a sentencing court may depart from the
guidelines “[u]pon motion of the government stating that the defendant has
provided substantial assistance in the investigation or prosecution of another
person who has committed an offense....” In this case, the government did not
file such a motion on Puller’s behalf, and Puller’s counsel asserts that there is no
non-frivolous ground on which Puller may challenge this decision. Having
undertaken a full examination of the record, as required by Anders, we agree.
“[T]his court can review the government’s refusal to file a substantial-
assistance motion only if that decision was based on an unconstitutional motive or
was not rationally related to a legitimate government end.” United States v.
Dominguez Beltran, 184 Fed. App’x 799, 802 (10th Cir. 2006) (unpublished)
(citing Wade v. United States, 504 U.S. 181, 185-86, (1992); United States v.
Duncan, 242 F.3d 940, 946 (10th Cir. 2001)). Based on our review of the record,
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we agree with Puller’s counsel that neither exception is at issue here. Indeed, as
Puller’s counsel points out, no claim was ever raised below under the
“unconstitutional motive” exception.
In her supplemental brief, however, Puller somewhat ambiguously contends
that the government violated the Equal Protection Clause when it filed § 5K1.1
motions with respect to two of her co-defendants, but declined to do so in her
case. This argument was not raised below, and “[w]hile we have reviewed
sentencing errors that were not raised in the district court under a plain error
standard, plain error review is not appropriate when the alleged error involves the
resolution of factual disputes.” United States v. Easter, 981 F.2d 1554, 1555-56
(10th Cir. 1992) (citation omitted). Puller’s “suggestion regarding the
government’s motive for failing to bring a motion raises the factual issue of, not
only the government’s motive, but whether [Puller] in fact provided substantial
assistance. Accordingly, because [Puller] failed to raise this fact-dependent issue
in the court below, [she] has waived it on appeal, and plain error review does not
apply.” Id. at 1556. We therefore decline to consider Puller’s argument.
B. Puller’s Sentence
Puller’s counsel asserts that there is no non-frivolous ground on which
Puller may challenge either the procedural or substantive reasonableness of her
sentence. Having engaged in a full examination of the record, as required by
Anders, we agree. The district court properly calculated Puller’s guideline range
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sentence and considered Puller’s request for a downward departure, together with
the § 3553(a) sentencing factors, and the uncontested facts in the presentence
report. Thereafter, the district court sentenced Puller within the advisory
guideline range, a sentence that is entitled to a presumption of reasonableness.
United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). Based on our
review of the record, we find no basis on which this presumption may be
overcome.
In her supplemental brief, however, Puller contends that § 2B1.1 provides
for a base offense level of 4 and therefore that the district court erred in
determining that her base offense level was 7. We disagree. Section 2B1.1(a)(1)
specifically provides that a defendant’s base offense level shall be “7, if (A) the
defendant was convicted of an offense referenced to this guideline; and (B) that
offense of conviction has a statutory maximum term of imprisonment of 20 years
or more....” 1 In all other circumstances, the base offense level is provided for
under § 2B1.1(a)(2), which indicates that a defendant’s offense level shall
otherwise be 6. It is not clear on what basis Puller believes her base offense level
should be 4. As such, we reject her argument.
C. Motion to Suppress
In her supplemental brief, Puller contends that the district court erred in
denying her motion to suppress. Unfortunately for Puller, she entered an
1
Each of these circumstances is present in this case.
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unconditional guilty plea, which “results in the waiver of all nonjurisdictional
defenses.” United States v. Robertson, 45 F.3d 1423, 1434 (10th Cir. 1995). And
because there is no indication in the record that Puller’s guilty plea was either
unknowing or involuntary, Puller’s argument regarding her motion to suppress
cannot form the basis of an appeal.
D. Motion for Resentencing
As a final matter, Puller attached to her supplemental brief a motion for a
reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). This motion was
purported to have been filed in the “United States District Court for the Tenth
Circuit District of Colorado.” Assuming that Puller in fact intended to file the
motion with this court, we dismiss it without prejudice. This court does not have
authority to resentence defendants; Puller’s motion must be filed with the United
States District Court for the District of Colorado.
III. CONCLUSION
Based on the foregoing, we GRANT counsel’s motion to withdraw and
DISMISS this appeal. Puller’s motion for a reduction in sentence pursuant to 18
U.S.C. § 3582(c)(2) is dismissed without prejudice.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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