United States v. Letschka

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 25 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-1039
v. (D.C. No. 03-CR-139-RB)
DEAN EDWARD LETSCHKA, aka (D. Colorado)
Sam Hammer,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge , BRISCOE and HARTZ , Circuit Judges.
Defendant Dean Edward Letschka pleaded guilty to receiving child
pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). He stipulated in the
plea agreement to a sentence of 96 months. At the sentencing hearing, however,
Defendant suggested that the court sentence him to a shorter period of
incarceration. He informed the court that it was “not bound” by the “federal
sentencing guideline numbers [that had] been crunched and stretched into a very
*
This order and judgment is not binding precedent, except under the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.
long period of incarceration suggested by the prosecution,” and asked the court to
impose a “lighter sentence.” R. Vol. III at 12. Notwithstanding Defendant’s
request, the district court sentenced him to 96 months’ imprisonment, in
accordance with the stipulation. In imposing the sentence, the court noted that
“[t]here [was] no formal request, and certainly no cogent rationale, to depart from
the guideline range or to deviate from the sentence bargained for by both the
government and the defendant in the plea agreement.” Id. at 19-20.
Defendant now appeals his sentence. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm.
Defense counsel has filed an Anders brief indicating her belief that there
are no non-frivolous issues to be raised on appeal. See Anders v. California, 386
U.S. 738, 744 (1967). Although Anders entitles Defendant to raise additional
points in response to counsel’s Anders brief, see id., Defendant has made no such
filing.
We agree with counsel that Defendant has no non-frivolous claims to
pursue on appeal. Defendant simply received the sentence for which he
bargained. There is no indication in the record that he did not knowingly and
voluntarily enter into the plea agreement. And to the extent Defendant’s remarks
at the sentencing hearing may be construed as a request for a downward
departure, we lack jurisdiction to review the district court’s discretionary denial
-2-
of a downward departure unless the denial was based on an illegal factor or an
incorrect application of the Guidelines. United States v. Guidry, 199 F.3d 1150,
1161 (10th Cir. 1999). We see no basis for such an argument in this case.
Accordingly, agreeing with counsel that Defendant’s claims are frivolous,
we GRANT counsel’s request to withdraw and AFFIRM the judgment below.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-3-