UNITED STATES COURT OF APPEALS
Filed 10/4/96
TENTH CIRCUIT
UNITED STATES OF AMERICA, )
)
)
Plaintiff-Appellee, ) No. 95-6367
v. ) (D.C. No. CR-95-59-L)
) (W.D. Okla.)
VIRGINIA G. BUSTOS, )
a\k\a Virginia Galiene Bustos, a\k\a Jo )
Bustos, )
)
Defendant-Appellant. )
ORDER AND JUDGMENT*
Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.**
Defendant Virginia G. Bustos appeals from her conviction and 120 month sentence
for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1).
Appellate counsel, pursuant to Anders v. California, 386 U.S. 738 (1967), filed a brief
*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. 34.1.9. The case is therefore ordered
submitted without oral argument.
noting his belief that there were no meritorious appellate issues and requesting that this
court allow him to withdraw from the case. However, counsel did, consistent with
Anders’s dictates, point out two portions of the record that he believed could arguably
support an appeal. Defendant filed a pro se brief in response arguing that her sentence
was unreasonably harsh compared to the sentences of those codefendants with equal
culpability and that a firearm was improperly considered in the calculation of her
sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. After due
consideration and an independent review of the record, see United States v. Lambert, 603
F.2d 808, 809 n.2 (10th Cir. 1995), we dismiss the appeal as frivolous and grant defense
counsel’s motion to withdraw.
Defendant argues that her sentence of 120 months of incarceration is
unconstitutionally disparate from those of her mother and sister. However, Defendant,
her mother, and her sister were originally given sentences ranging from 120 to 1321
months of imprisonment--a very close range. Moreover, Defendant was sentenced to the
minimum allowable statutory term of imprisonment. Any claim of unconstitutional
disparity among these sentences is clearly frivolous.
1
Defendant’s mother was originally sentenced to an aggregate term of 132
months of incarceration on two counts, 60 months of which was based on the use of a
handgun in the commission of a crime pursuant to 18 U.S.C. § 924(c). After the Supreme
Court issued Bailey v. United States, 116 S. Ct. 501 (1995), the mother’s use of a
handgun conviction was reversed, leaving her sentence of imprisonment at 72 months.
As to the claim that the sentencing guideline score was improperly elevated,2 there
can be no question that Defendant possessed the weapon upon which the elevation was
predicated. See United States v. Nguyen, 1 F.3d 972, 973 (10th Cir. 1993) (holding that
possession of handgun elevation under guidelines can be predicated upon presence of
weapon in defendant’s residence where transactions occurred). Moreover, at sentencing,
Defendant did not lodge any objection to this two-point enhancement recommendation in
the pre-sentence report. United States v. O'Dell, 965 F.2d 937, 938 (10th Cir. 1992)
(stating that defendant must challenge factual inaccuracies in the presentence report or
waive the error on appeal). Any claim on this issue is clearly frivolous. See USSG
§2D1.1(b)1.
We have read the briefs before us and reviewed the trial record, particularly the
sections designated in counsel’s Anders brief, and we find no arguable claim of unfair
sentencing as a result of Defendant’s cooperation with the authorities. Quite to the
contrary, we note that a number of charges were dismissed as a result of her cooperation
and that she was given a downward reduction under the guidelines. Moreover, we find
no appealable issue as to Defendant’s ability to pay the fine imposed by the district court-
her assets clearly were sufficient.
We find this appeal frivolous.
APPEAL DISMISSED. COUNSEL’S MOTION TO WITHDRAW IS
2
As the Sentencing Guidelines’ enhancement is predicated on “possession,”
not “use,” Bailey is inapplicable to this issue.
GRANTED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge