United States v. Chavez

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 5, 2006

TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
No. 05-1144
v. (D.C. No. 04-CR-340-W M )
(Colorado)
RA CH EL CHAV EZ,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.

Rachel Chavez pled guilty to making false statements in violation of 18

U.S.C. § 1001 and was sentenced to five years of probation and restitution

payments of $17,636.00. She now seeks to challenge her conviction and

sentence. Counsel for M s. Chavez filed a brief pursuant to Anders v. California,

*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
386 U.S. 738 (1967), noting there did not exist any non-frivolous issues for

appeal and seeking permission to withdraw. W e exercise jurisdiction pursuant to

28 U.S.C. § 1291, grant counsel’s motion to withdraw, and dismiss the appeal.

M s. Chavez was charged in a four count indictment with making false

statements in violation of 18 U.S.C. § 1001. In December 2004, she entered into

a written plea agreement whereby she agreed to plead guilty to one of the counts

against her in exchange for the government’s agreement to dismiss the remaining

counts and recommend a sentence at the bottom of the guideline range. M s.

Chavez understood that by pleading guilty she w as giving up her rights to a jury

trial, to the presumption of innocence, to being found guilty by proof beyond a

reasonable doubt, to her right to confront witnesses, to the right to be free from

compelled self-incrimination, and to compulsory process. She adopted the

recitation of the facts set out in the plea agreement as the factual basis for her

plea and was informed of the penalties for her offense. M s. Chavez was

sentenced on April 19, 2005, to five years probation and no jail time, and

restitution payments of $17,636.00. Her sentence fell at the bottom of the zero to

six month range of permissible sentences for her crime. M s. Chavez filed a

timely notice of appeal, asserting her wish to challenge her sentence.

In the Anders brief, counsel notes that because M s. Chavez pled guilty, “the

only possible avenues for appeal would be irregularities in the guilty plea, or

sentencing errors.” Aplt. Br. at 4. Counsel first reasoned there were no grounds

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to challenge M s. Chavez’ guilty plea because it was knowing, voluntary, and fully

complied with F ED . R. C RIM . P. 11. See also United States v. Gigot, 147 F.3d

1193, 1197 (10th Cir. 1998) (guilty plea must be knowing, intelligent and

voluntary). Counsel asserted that because M s. Chavez received the minimum

sentence required by statute for her plea, admitted to the facts supporting that

sentence, and the district court engaged in a full examination of the 18 U.S.C. §

3553(a) factors in the course of sentencing her, there was no basis to challenge

her sentence pursuant to either Blakely v. Washington, 542 U.S. 296 (2004), or

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

M s. Chavez has not responded to her attorney’s Anders brief, and the

government has likewise declined to file a response. Pursuant to Anders, we must

conduct “a full examination of all the proceedings” to determine if M s. Chavez’s

appeal is wholly frivolous. 386 U.S. at 744. The record indicates M s. Chavez

was fully aw are of her rights and of the impact of her guilty plea. Rec., vol. I,

doc. 18, 19. There is no indication that her plea suffered from irregularities or

was accepted in derogation of the requirements of F ED . R. C RIM . P. 11. Because

M s. Chavez admitted to the amount of loss used to establish her sentence, and

because she received the minimum sentence for her crime, any Blakely argument

is precluded. Finally, while she was sentenced after the Supreme Court’s decision

in Booker, there exist no grounds for her to challenge her sentence for

unreasonableness with reference to the factors laid out in 18 U.S.C. § 3553(a).

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See Booker, 543 U.S. at 261. The sentencing transcript makes clear the district

court gave proper consideration to § 3553(a)’s statutory factors in giving M s.

Chavez the lowest sentence possible for the offense.

Based on our full examination of the proceedings, we conclude there are no

non-frivolous issues for appeal. Accordingly, we DISM ISS the appeal and

G R A N T counsel’s request to withdraw.

ENTERED FOR THE COURT

Stephanie K. Seymour
Circuit Judge

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