F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 15 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-1595
(D.C. No. 00-CR-448-B)
NOE CAMACHO, (D. Colorado)
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 02-1018
(D.C. No. 00-CR-448-B)
ADALBERTO LOPEZ, also known as (D. Colorado)
Norberto,
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-1019
v. (D.C. No. 00-CR-448-B)
(D. Colorado)
ALBERTO N. LOPEZ,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges. **
Defendants-Appellants Noe Camacho, Adalberto Lopez, and Alberto Lopez
appeal from their sentences. Because these appeals arise from common facts (all
defendants were named in the same superseding indictment, 1 R. (02-1018) Doc.
208), raise similar issues, and suffer the same jurisdictional defects, we now
consolidate them for disposition.
Mr. Camacho pled guilty to distribution of 500 grams or more of
methamphetamine and aiding and abetting in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(A) and 18 U.S.C. § 2. He was sentenced to fifty-seven months
imprisonment to be followed by a five-year supervised release and assessed $100.
The pre-sentence investigation report adopted by the district court placed Mr.
Camacho in criminal history category I and the offense at level 25. Mr. Camacho
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of these appeals. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
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did not dispute the accuracy of the report’s calculations, but argued for a
downward departure based upon extensive family ties and support in Mexico, lack
of a prior criminal record, and minimal participation in the crime.
Mr. Adalberto Lopez pled guilty during trial to (1) conspiracy to possess
with intent to distribute 500 grams or more of methamphetamine, and (2)
distribution of 500 grams or more of methamphetamine, and aiding and abetting
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. He was
sentenced to a total of 180 months imprisonment to be followed by a five-year
supervised release (the district court ran the sentences on each count
concurrently) and assessed $200. At the sentencing hearing, counsel argued for a
downward departure due to an over-representation of Mr. Adalberto Lopez’s
criminal history.
Mr. Alberto Lopez was convicted by a jury of (1) conspiracy to possess
with intent to distribute 500 grams or more of methamphetamine, (2) distribution
of 50 grams or more of methamphetamine, (3) possession with intent to distribute
50 grams or more of methamphetamine, and (4) distribution of 500 grams or more
of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)-(B) and
21 U.S.C. § 846. He was sentenced to a total of 151 months imprisonment on
each count to be followed by a five-year supervised release on each count (the
sentences to be served concurrently) and assessed $400.
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Counsel for all three defendants have filed briefs pursuant to Anders v.
California, 386 U.S. 738 (1967), and have moved to withdraw. Anders holds that
if counsel finds an appeal “to be wholly frivolous, after a conscientious
examination of it, he should so advise the court and request permission to
withdraw.” Id. at 744. Counsel must also submit to the court a brief addressing
anything in the record that arguably supports the appeal. Id. In their Anders
briefs, counsel for Mr. Camacho and Mr. Adalberto Lopez recognize that this
court lacks jurisdiction to review a district court’s denial of a motion for
downward departure. Counsel for Mr. Alberto Lopez contends that there are no
legally cognizable issues for appeal.
Unless the judge’s language unambiguously states that the judge does not
believe he has the authority to make a downward departure, we do not have
jurisdiction to review the denial of a downward departure. See United States v.
Guidry, 199 F.3d 1150, 1161 (10th Cir. 1999). The transcripts of both Mr.
Camacho’s and Mr. Adalberto Lopez’s sentencing hearings contain no such
statement.
Mr. Adalberto Lopez filed a response to counsel’s brief, raising two claims:
(1) the sentence constituted a constructive amendment of the indictment, and (2)
ineffective assistance by counsel failing to negotiate an earlier plea bargain with
the government and failing to file written objections to the pre-sentence report.
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Mr. Alberto Lopez filed a motion for appointment of counsel claiming ineffective
assistance of counsel, and we construe this as a response to counsel’s brief.
Ineffective assistance “claims brought on direct appeal are presumptively
dismissible, and virtually all will be dismissed.” United States v. Galloway, 56
F.3d 1239, 1240 (10th Cir.1995) (en banc). We therefore decline to review the
ineffective assistance claims here.
As noted, Mr. Adalberto Lopez also raises Fifth and Sixth Amendment
claims, alleging that he was indicted for conspiracy to possess with intent to
distribute “(500) grams of methamphetamine,” but the district court adopted the
findings of the pre-sentence report (PSR), which “held that appellant should be
held accountable for 2,200 grams.” Aplt. Adalberto Lopez Br. at 4. According to
Mr. Adalberto Lopez, the district court constructively amended the grand jury’s
indictment by adopting the PSR’s finding as to the quantity of drugs and
sentencing Mr. Adalberto Lopez at offense level 34 (at least 1.5 KG but not more
than 5 KG of methamphetamine).
Apparently, this argument was not raised before the district court and will
be reviewed for plain error. In United States v. Cotton, 122 S. Ct. 1781 (2002),
the Court held that the failure to allege a drug quantity in an indictment does not
deprive a court of jurisdiction and, where the issue is not raised below, it will be
evaluated for plain error. Id. at 1785-86. Thus, it is doubtful that such a claim
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could succeed absent a showing that the error claimed seriously affected the
fairness, integrity, or public reputation of the proceedings. Regardless, there is
no factual basis for such a claim here. Mr. Adalberto Lopez was indicted by the
grand jury for conspiracy to possess with intent to distribute and distribution of
“500 grams or more” of methamphetamine, in accord with the terms of 21 U.S.C.
§ 841(b)(1)(A). 1 R. (02-1018) Doc. 208. Nowhere in the grand jury’s
superseding indictment does it charge Mr. Adalberto Lopez with a quantity
limited to 500 grams of methamphetamine, only that he conspired to possess with
intent to distribute and distributed “more than 500 grams.” Mr. Adalberto
Lopez’s sentence, then, falls below the maximum penalty (life imprisonment)
provided in § 841(b)(1)(A) and was in accord with the superseding indictment and
the Sentencing Guidelines.
Pursuant to our duty under Anders, we have conducted an independent
review. Because we agree that there are no non-frivolous issues on appeal, we
GRANT permission for counsel to withdraw and DISMISS these appeals. Mr.
Alberto Lopez’s request for appointment of counsel is DENIED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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