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judgment is not binding precedent, except under the doctrines of law of the case,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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