F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 5 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 00-3124
v. (D.C. No. CR-99-10057-14-MLB)
(D. Kansas.)
SILVESTRE GUEBARA,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRORBY , McKAY , and LUCERO , Circuit Judges.
Appellant Silvestre Guebara was indicted for conspiracy to knowingly
possess with intent to distribute 1000 kilograms of a mixture or substance
containing a detectable amount of marijuana in violation of 21 U.S.C.
§§ 841(a)(1) and 846 and for knowingly possessing with intent to distribute
approximately 100 pounds of a mixture or substance containing a detectable
amount of marijuana in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). In
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
exchange for the government’s agreement to dismiss the conspiracy count,
appellant entered a plea of guilty to possession with intent to distribute. The
district court accepted appellant’s plea and ordered preparation of a presentence
investigation report (“PSR”).
Apparently pursuant to the PSR, which recommended a two-level offense
level reduction for acceptance of responsibility, the district court sentenced
appellant to sixty-three months imprisonment, six years of supervised release, a
$100 assessment, and ineligibility for all federal benefits for a period of five
years. Appellant challenges the sentence on two grounds: first, that the
sentencing court double counted a 1994 battery conviction in calculating his
criminal history category, and second, that the court should have decreased his
-2-
offense level under U.S.S.G. § 3B1.2 for minor participation. 1
Exercising
jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm.
In sentencing appeals, “[w]e review the district court’s factual findings
under the clearly erroneous standard and review its applications of the Sentencing
Guidelines de novo.” United States v. Roberts , 185 F.3d 1125, 1144 (10th Cir.
1999) (citation omitted), cert. denied , 120 S. Ct. 1960 (2000). We “‘giv[e] due
1
Appellant’s appointed counsel filed an Anders brief characterizing this
appeal as frivolous. See Anders v. California , 386 U.S. 738, 744 (1967)
(permitting counsel who considers an appeal to be wholly frivolous to advise the
court of that fact, request permission to withdraw from the case, and submit a
brief referring to portions of the record that arguably support the appeal). He
filed a motion asking for permission to withdraw and appointment of new
counsel for the appeal.
In return, appellant filed a response suggesting that he has received
ineffective assistance of counsel. (Appellant’s Resp. at 1 (“My attorney has
failed from the beginning of my sentencing.”).) For reasons stated in United
States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995), the Court will not pass
on the ineffective assistance of counsel issue at this time:
Ineffective assistance of counsel claims should be brought in
collateral proceedings, not on direct appeal. Such claims brought on
direct appeal are presumptively dismissible, and virtually all will be
dismissed. . . .
The reasons for this rule are self-evident. . . . A factual record
must be developed in and addressed by the district court in the first
instance for effective review.
We note that appellant’s counsel did not designate the transcript of the
sentencing hearing as part of the record on appeal. Appellant states in his
response, “My attorney has failed to send me transcripts from my sentencing after
. . . 10 letters written to him.” (Appellant’s Resp. at 2.) We conclude that
appellant’s challenges can be resolved without the transcript.
-3-
deference to the district court’s application of the guidelines to the facts.’”
United States v. Vallo , 238 F.3d 1242, 1250 (10th Cir. 2001) (quoting United
States v. Patron-Montano , 223 F.3d 1184, 1188 (10th Cir. 2000)). The
government argues that a plain error standard of review should apply in this
appeal because appellant did not make his arguments before the sentencing court.
As explained below, our review of the record would require us to reject
appellant’s arguments even if we assumed that he properly preserved his
objections during sentencing.
Appellant bases his first argument—that the district court double counted
his 1994 battery conviction in computing his criminal history category—on his
copy of the original version of the PSR, which included two references to the
same crime. The double counting in the original PSR, however, was harmless
because it did not affect the final criminal history calculation. In addition, the
PSR was revised before the sentencing date to omit the double reference. This
aspect of the district court’s sentencing was not erroneous. 2
2
Appellant’s Response appears to challenge another aspect of his criminal
history computation. He states, “I also feel the Courts failed to supply adequate
information on Page 10 of my [PSR] on a D.U.I. making it unfair to use [it] . . .
and allow one point for this offense.” (Appellant’s Resp. at 1.) Although the
PSR excluded the date of that offense as unknown, it did include other
information—the court in which appellant pleaded guilty, the docket number, the
date of sentencing, and the sentence—making it fair to include the offense in
calculating his criminal history category.
-4-
Similarly, the sentencing court did not err by failing to decrease appellant’s
offense level for minor participation sua sonte. Under U.S.S.G. § 3B1.2(b), the
sentencing court “may grant a two-point reduction if the defendant proves by a
preponderance of the evidence [he] acted as a minor participant in the offense.”
United States v. Chavez , 229 F.3d 946, 956 (10th Cir. 2000) (citing United States
v. Lockhart , 37 F.3d 1451, 1455 (10th Cir. 1994)); see United States v.
Santistevan , 39 F.3d 250, 254 (10th Cir. 1994) (“It is the defendant’s burden to
establish, by a preponderance of the evidence, his entitlement to an offense level
reduction under § 3B1.2.” (citations omitted)). It was appellant’s, not the
sentencing court’s, burden to raise and prove that he was entitled to the decrease
in offense level. 3
3
As mentioned above, appellant entered a plea of guilty to possession
with intent to distribute in exchange for the government’s promise to dismiss the
greater conspiracy count. If appellant had sought a decrease in offense level
under § 3B1.2(b), it would have been a difficult sell. As the commentary
accompanying the sentencing guideline states,
If a defendant has received a lower offense level by virtue of being
convicted of an offense significantly less serious than warranted by
his actual criminal conduct, a reduction for a mitigating role under
this section ordinarily is not warranted because such defendant is not
substantially less culpable than a defendant whose only conduct
involved the less serious offense.
U.S.S.G. § 3B1.2(b) cmt. 4.
Appellant attacks as false a Drug Enforcement Agency official’s testimony
to the effect that appellant was not a minor participant in an offense. Because the
(continued...)
-5-
Counsel’s motion to withdraw is GRANTED . Appellant’s motion to have
counsel appointed is DENIED , and his sentence is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
3
(...continued)
district court did not have a duty to decrease sua sponte appellant’s offense level,
the attack is to no avail.
-6-