United States v. Torres

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 11, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 05-7013
v. (E.D. Oklahoma)
NELSON CHAMIZO TORRES, (D.C. No. CR-04-33-01-P)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before HENRY, BRISCOE, and O’BRIEN, 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 F ED . R. A PP . P. 34( A )(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Nelson Chamizo Torres, a federal prisoner, appeals the district court’s

*
This order and judgment is not binding precedent, except under the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
may be cited under the terms and conditions of 10th Cir. R. 36.3.

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denial of his motion to suppress and challenges the legality of his 210-month

sentence. His attorney has filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), and has moved for leave to withdraw as Mr. Torres’s counsel. For

the following reasons, we GRANT the leave to withdraw and DISMISS Mr.

Torres’s appeal.

I. BACKGROUND

During a traffic stop, an Oklahoma Highway Patrol officer found cocaine in

a vehicle in which Mr. Torres was a passenger. His girlfriend and co-defendant,

Laura Morales, was driving. After writing Ms. Morales a citation, and while she

was leaving the patrol car, the officer asked Ms. Morales whether she had any

drugs, alcohol, weapons, or a large amount of currency in the car. Ms. Morales

replied that she did not. The officer asked if he could search the car, and Ms.

Morales agreed. Ms. Morales remained in the officer’s car, and the officer

returned to the vehicle to ask Mr. Torres, who had told the officer that he owned

the car, whether he could search the car. Mr. Torres also agreed to the search.

The officer found 4.52 kilograms of cocaine during the search in the airbag

compartment of the vehicle.

After he was charged in state court, a federal grand jury issued a one-count

indictment charging Mr. Torres with possession with intent to distribute cocaine,

in violation of 21 U.S.C. § 841(a)(1). Mr. Torres filed a motion to suppress,

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arguing that Ms. Morales’s consent was not voluntary because she “did not

adequately understand the English language” and because, even if he and Ms.

Morales consented to a search, the search of the airbag compartment exceeded the

scope of their consent. Rec. vol. 1 doc. 15, at 7 (Report and Recommendation,

dated Apr. 23, 2004).

During the motion to suppress hearing, the trooper indicated that Ms.

Morales’s “English was broken,” and that he could not recall whether he had

asked for her consent to search in English or Spanish, but that he was confident

that her consent was knowing and voluntary. Rec. vol. II, at 13-14 (Tr., filed May

2, 2005). He also testified that Mr. Torres “spoke much better English than Ms.

Morales did,” and that Mr. Torres told him that he owned the car and also gave

his consent to search. Id. at 15. The defendant produced no evidence of coercion

during the motion hearing, and also produced no evidence that either he or Ms.

Morales objected at any time during the search of their vehicle. At the end of the

motion hearing, Mr. Torres’s counsel told the court that he would review the

video and audio tape evidence, and provide it to the court if it contradicted the

trooper’s testimony. The tapes were never put into evidence because “[c]ounsel

did not feel that the tape or transcription/translation benefitted defendant’s

claims.” Aplt’s Br. at 6.

After the district court denied Mr. Torres’s motion to suppress the evidence

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found in the vehicle, Mr. Torres pleaded guilty to the indictment. The PSR

recommended that Mr. Torres be subject to the career offender enhancement

because of his history of prior convictions. Initially, Mr. Torres objected to the

PSR recommendation claiming that one of the listed convictions which supported

the career offender enhancement, was not actually a conviction, but a revocation

of probation for a separate offense. At the sentencing hearing, however, Mr.

Torres’s counsel withdrew these objections after his counsel received the court

records that established the conviction record in the PSR was accurate.

Acknowledging that Booker v. United States, 543 U.S. 220 (2005), rendered

the Sentencing Guidelines advisory rather than mandatory, the district court relied

on these two convictions to support the Guidelines’ recommendation of applying a

career offender enhancement. The Guidelines’ range was 210-262 months, and

after reviewing the factors listed in 18 U.S.C. § 3553(a), the district court

sentenced Mr. Torres to 210 months’ imprisonment.

II. DISCUSSION

Mr. Torres wishes to appeal both the district court’s denial of his motion to

suppress and the 210-month sentence it imposed. His counsel submitted a brief

complying with Anders v. California, and has moved for leave to withdraw as

counsel. 386 U.S. at 744 (explaining that counsel’s request to withdraw must “be

accompanied by a brief referring to anything in the record that might arguably

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support the appeal”). Here, counsel furnished a copy of the brief to Mr. Torres,

who filed a supplemental brief addressing why he is appealing his sentence. Mr.

Torres does not raise any additional issues beyond those in the brief submitted by

his counsel.

In Anders, the Supreme Court held that “if counsel finds his case to be

wholly frivolous, after a conscientious examination of it, he should so advise the

court and request permission to withdraw.” Id. This court “must then conduct a

full examination of the record to determine whether defendant’s claims are wholly

frivolous. If [we] conclude[] after such an examination that the appeal is

frivolous, [we] may grant counsel’s motion to withdraw and may dismiss the

appeal.” United States v. Calderon, 428 F.3d 928, 929 (10th Cir. 2005).

A. Motion to Suppress

When reviewing a district court’s denial of a motion to suppress, we accept

all factual findings unless they are clearly erroneous and view the evidence in the

light most favorable to the Government. United States v. Angelos, 433 F.3d 738,

744 (10th Cir. 2006). “Whether consent has been given is a question of fact and

is determined from the totality of the circumstances.” United States v. Santurio,

29 F.3d 550, 552 (10th Cir. 1994). “The scope of consent is a fact question based

upon what a reasonable person would have understood under the circumstances.”

United States v. Gregoire, 425 F.3d 872, 880 (10th Cir. 2005).

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After a careful review of the record, we conclude that there is no credible

evidence to support Mr. Torres’s contention that the trooper either searched his

car without consent or exceeded the scope of the consent that either Mr. Torres or

Ms. Morales may have provided. The trooper’s testimony during the motion to

suppress hearing was uncontroverted: neither Ms. Morales or Mr. Torres testified,

and after reviewing the video and audio evidence, Mr. Torres’s counsel

determined that those pieces of evidence would not assist Mr. Torres’s argument.

The only evidence before the district court was the trooper’s testimony, which

established that even if Ms. Morales had not completely understood the questions

posed to her regarding the search of the vehicle, Mr. Torres spoke English well

and also gave his consent to search the vehicle. There is simply nothing in the

record to support Mr. Torres’s contention that the district court’s determinations

regarding consent were clearly erroneous. We therefore affirm the district court’s

denial of the motion to suppress, and conclude that this aspect of Mr. Torres’s

appeal is wholly frivolous.

B. Mr. Torres’s Sentence

For sentences imposed after Booker, we review a defendant’s sentence for

reasonableness. United States v. Morales-Chaires, 430 F.3d 1124, 1128 (10th

Cir. 2005). As we noted above, Mr. Torres’s counsel withdrew certain objections

to the PSR at the sentencing hearing, and acknowledged that the defendant had, in

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fact, been convicted of the two offenses the district court relied upon in coming to

its determination that Mr. Torres was a career offender.

Mr. Torres now argues that the district court erred in applying the career-

offender enhancement because he served only ninety days on one of the charges.

His argument is clearly foreclosed by the Guidelines themselves: the notes to

section 4.B1.2 explain that a “‘[p]rior felony conviction’ [as that term is used in

the career offender enhancement guideline] means a prior adult federal or state

conviction for an offense punishable by death or imprisonment for a term

exceeding one year . . . regardless of the actual sentence imposed.” U.S.S.G. §

4B1.2 n.1 (emphasis added). The two prior convictions that the district court

relied upon were convictions in California for possession of cocaine for sale,

which are punishable by up to five years imprisonment. C AL . H EALTH & S AFETY

C ODE § 11351.5. Therefore, we hold that Mr. Torres’s argument regarding his

sentence is wholly without merit and that the district court’s imposition of a 210-

month sentence in this case was reasonable. “[A] sentence that is properly

calculated under the Guidelines is entitled to a rebuttable presumption of

reasonableness,” United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006),

and Mr. Torres has made no meritorious arguments that the sentence is

unreasonable when viewed in light of the factors listed in 18 U.S.C. 3553(a) that

could overcome that presumption.

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III. CONCLUSION

Because Mr. Torres has not shown any meritorious grounds for appeal, we

GRANT his counsel’s request to withdraw and DISMISS the appeal.

Entered for the Court

Robert H. Henry
Circuit Judge