F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 2 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-8104
v.
(Dist. of Wyoming)
(D.C. No. 98-CR-148-04-B)
CESAREO HERNANDEZ-
RODRIQUEZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
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This order and judgment is not binding precedent, except under the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.
Cesareo Hernandez-Rodriquez pleaded guilty to conspiracy to possess with
intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841 and 846.
The district court sentenced Hernandez-Rodriquez to a term of imprisonment of
seventy months. Counsel for Hernandez-Rodriquez has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), indicating his belief that the appeal is
frivolous and requesting leave to withdraw as counsel. Because this court agrees
that the appeal is frivolous, we grant leave to withdraw and affirm.
In Anders, the Supreme Court held that if counsel finds a case to be wholly
frivolous after conscientious examination, he may so advise the court and request
permission to withdraw. In so doing, counsel must submit to both the court and
his client a brief referring to anything in the record which could arguably support
the appeal; the client may raise any additional points he chooses. This court will
then undertake an examination of the entire record to determine whether the
appeal is in fact frivolous. If this court so decides, we may grant counsel’s
request to withdraw and proceed to a decision on the merits. See id. at 744.
Hernandez-Rodriquez was indicted in the District of Wyoming on January
28, 1999, with conspiracy to possess with intent to distribute methamphetamine.
Hernandez-Rodriquez eventually entered into plea negotiations with the
government. As part of those plea negotiations, Hernandez-Rodriquez met with
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representatives of the government on July 6, 1999. At the meeting, Hernandez-
Rodriquez “proffered” certain information to the government. 1
Prior to the commencement of the meeting, the prosecutor explained to
Hernandez-Rodriquez that the government might be willing to move the district
court for a reduction of his sentence if Hernandez-Rodriquez provided
“substantial assistance” to the government within the meaning of United States
Sentencing Guideline § 5K1.1. Based on such a motion, the district court could
depart downward from the otherwise applicable guideline range. The prosecutor,
however, did not promise to file such a motion, but only indicated that he would
consider filing such the motion after he heard what Hernandez-Rodriquez had to
say at the meeting. Despite this lack of assurance, Hernandez-Rodriquez went
ahead with the meeting.
Subsequent to the proffer meeting, Hernandez-Rodriquez’s counsel
contacted the prosecutor and asked whether the government would file a motion
under § 5K1.1. The prosecutor stated that he believed Hernandez-Rodriquez had
1
Apparently, Hernandez-Rodriquez was born and lived much of his life in
Mexico. Hernandez-Rodriquez speaks and understands English, but not very
well. Prior to this meeting, Hernandez-Rodriquez’s counsel informed the
prosecutor that a Spanish speaking interpreter should be present for the meeting.
When Hernandez-Rodriquez and his attorney arrived at the meeting, however, no
interpreter was present. Although the prosecutor apologized for his error and
offered to reschedule the meeting, Hernandez-Rodriquez decided, after discussing
the issue with his attorney, to proceed with the meeting despite the lack of an
interpreter.
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not been fully forthcoming in the proffer meeting regarding his knowledge of his
co-conspirators’ involvement in the charged conspiracy. Therefore, the prosecutor
stated that he did not believe that Hernandez-Rodriquez had rendered substantial
assistance to the government.
After this discussion, the government sent Hernandez-Rodriquez a proposed
plea agreement. The plea agreement was completely silent as to the question of
whether the government would file a motion under § 5K1.1. Hernandez-
Rodriquez signed the plea agreement nonetheless. On August 23, 1999, the
signed plea Agreement was filed with the district court. That same day,
Hernandez-Rodriquez appeared before the district court and changed his plea
from not guilty to guilty. A Spanish interpreter was present at the change of plea
hearing and interpreted the proceedings for the benefit of the Hernandez-
Rodriquez and the court. At the change of plea hearing, the district court asked
Hernandez-Rodriquez if he had knowingly and voluntarily signed the plea
agreement; Hernandez-Rodriquez responded in the affirmative. The district court
also asked Hernandez-Rodriquez if the plea agreement contained all of the terms
of the agreement between himself and the government; Hernandez-Rodriquez
again responded in the affirmative
After the change of plea hearing, a presentence report (“PSR”) was
prepared for Hernandez-Rodriquez. The PSR did not make mention of the issue
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of substantial assistance. Although Hernandez-Rodriquez’s counsel did not object
to the PSR, he did send a letter to the probation officer stating that the
government and Hernandez-Rodriquez had discussed the issue of substantial
assistance and that the PSR should bring the issue to the court's attention for
sentencing purposes. On October 19, 1999, the probation officer filed an
addendum to the PSR noting Hernandez-Rodriquez’s position that he and the
government had discussed the issue of substantial assistance.
The district court sentenced Hernandez-Rodriquez on November 16, 1999.
The sentencing hearing was also interpreted by a Spanish speaking interpreter. At
the hearing, Hernandez-Rodriquez’s discussed the issue of substantial assistance
with the district court. Counsel informed the district court that he had also
discussed the issue extensively with Hernandez-Rodriquez. In response to these
discussions, the court asked Hernandez-Rodriquez if he had any desire to
withdraw his guilty plea and to go to trial in his case. Hernandez-Rodriquez
indicated that he did not wish to withdraw his guilty plea. The district court
thereafter sentenced Hernandez-Rodriquez a term of seventy months, a term at the
low end of the sentencing guideline range. That sentencing range was based in
part on a three-point reduction in the base offense level based on Hernandez-
Rodriquez’s acceptance of responsibility and a further two-point reduction in the
base offense level under the safety valve provisions of the sentencing guidelines.
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In his Anders brief, counsel notes that Hernandez-Rodriquez insists on
raising the following issues on appeal: (1) did the government break its promise
to Hernandez-Rodriquez to file a motion under § 5K1.1; and, if so, (2) is
Hernandez-Rodriquez entitled to withdraw his guilty plea or be resentenced at a
lower guideline level because of the breach. Pursuant to Anders, Hernandez-
Rodriquez was provided a copy of counsel’s Anders brief and notified of his right
to file a responsive pro se brief. He has chosen not to respond.
As should be singularly clear from the extensive factual recitation set forth
above, Hernandez-Rodriquez’s allegations that the government breached a
promise to file a § 5K1.1 motion is utterly lacking in record support and is wholly
frivolous. Even assuming there was some confusion about the government’s
obligations at the time of the proffer meeting, a generous assumption indeed, the
government unequivocally indicated after the meeting that it would not file a §
5K1.1 motion because it did not believe Hernandez-Rodriquez had provided
substantial assistance. True to its word, the plea agreement ultimately extended
by the government did not include any requirement that the government file such
a motion. At the plea hearing, in open court, Hernandez-Rodriquez specifically
recognized and affirmed that the written plea agreement contained all of the
obligations of the parties and that there were no other agreements between
himself and the government. Such sworn declarations carry with them a
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presumption of truth; subsequent conclusory and contradictory statements are
subject to summary rejection. See Lasiter v. Thomas, 89 F.3d 699, 702-03 (10th
Cir. 1996). Furthermore, despite specific discussion of the question during the
sentencing hearing, Hernandez-Rodriquez refused the district court’s offer to
withdraw the plea and proceed to trial. Thus, after a searching review of the
entire record in this case, this court concludes there exists no basis whatsoever to
believe that an agreement to file a § 5K1.1 motion on Hernandez-Rodriquez’s
behalf was ever part of the plea agreement.
For all those reasons set out above, counsel’s motion to withdraw pursuant
to Anders is hereby GRANTED. The judgment of conviction entered and
sentence imposed by the United States District Court for the District of Wyoming
pursuant to Hernandez-Rodriquez’s guilty plea are both hereby AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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United States v. Hernandez-Rodriquez
Combined Opinion