F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 1, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 05-8019
v. (District of W yoming)
(D.C. No. 02-CR-125-08-D)
NAN CY LEIKER,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
After examining the briefs and appellate record, this court has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Nancy Leiker was charged in a one-count indictment with
conspiracy to distribute, and possess with intent to distribute, methamphetamine,
*
This order and judgment is not binding precedent, except under the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.
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). A jury convicted Leiker
and she w as sentenced to 240 months’ imprisonment to be follow ed by five years’
supervised release. Leiker filed a timely notice of appeal and her counsel filed a
brief and motion to withdraw pursuant to Anders v. California, 386 U.S. 738
(1967). For the reasons set forth below , we conclude the record in this case
provides no nonfrivolous basis for an appeal, and we therefore grant counsel’s
motion to withdraw and dismiss this appeal.
In the course of investigating a drug-distribution ring involving Amador
M oreno and Pedro M oreno, law enforcement agents discovered Leiker’s cell
phone number in Pedro M oreno’s wallet and the phone number of Leiker’s
mother in Amador M oreno’s w allet. Leiker was arrested and charged with
conspiracy to distribute, and possess with intent to distribute, methamphetamine.
At trial, three witnesses testified they had purchased methamphetamine from
Leiker. Teresa A guinaga, Leiker’s co-conspirator and Amador M oreno’s
girlfriend, testified she had received packages from Leiker containing large
amounts of cash. One package contained $10,000 and a note from Leiker
indicating she owed Amador M oreno an additional $16,000. Aguinaga further
testified that Lieker stated she sent more than $300,000 to Amador M oreno.
Leiker also told Aguinaga she and Amador M oreno could have made a lot of
money if they had continued working together because she had contacts in
Gillette, W yoming.
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A jury found Leiker guilty of the charge and also found the conspiracy
involved more than 500 grams of a mixture containing methamphetamine. After
Leiker’s conviction, the United States Probation Office prepared a presentence
report (“PSR”) which calculated Leiker’s criminal history as Category I and her
total offense level as forty. Leiker objected, challenging an obstruction-of-justice
enhancement and the PSR’s conclusion that the conspiracy involved the
distribution of fifteen kilograms or more of methamphetamine. Leiker argued the
district court could not enhance her guidelines sentencing range on the basis of
drug quantities greater than the 500 grams found by the jury.
At sentencing, the district court sustained Leiker’s objection to the
obstruction-of-justice enhancement but permitted the government to present
evidence with respect to drug quantities and found, by a preponderance of the
evidence, that Leiker’s relevant conduct involved drug quantities in excess of
fifteen kilograms of methamphetamine. Accordingly, the district court found
Leiker’s total offense level to be thirty-eight, resulting in a guidelines sentencing
range of 235 to 293 months. The court sentenced Leiker to 240 months’
incarceration and five years’ supervised release. Leiker then filed this timely
appeal.
Leiker’s counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), advising this court that Leiker’s appeal is wholly frivolous.
Accordingly, counsel has also filed a motion to w ithdraw . Under Anders, counsel
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may “request permission to w ithdraw where counsel conscientiously examines a
case and determines that any appeal would be wholly frivolous.” United States v.
Calderon, 428 F.3d 928, 930 (10th Cir. 2005). “[C]ounsel must submit a brief to
the [defendant] and the appellate court indicating any potential appealable
issues.” Id. The defendant may then submit additional arguments to the court.
Id. “The [c]ourt must then conduct a full examination of the record to determine
whether defendant’s claims are wholly frivolous. If the court concludes after
such an examination that the appeal is frivolous, it may grant counsel’s motion to
withdraw and may dismiss the appeal.” Id. (citation omitted). Leiker’s counsel
filed his Anders brief on November 18, 2005. Leiker was given notice of the
Anders brief and filed additional arguments on January 9, 2006.
In his Anders brief, Leiker’s counsel states that although Leiker has
requested an appeal based on her belief the district court erred when it calculated
her offense level, he has reviewed the record and the applicable case law and can
find no support for Leiker’s position. In the brief Leiker filed with this court, she
argues her Sixth A mendment rights were violated because the district court
imposed a sentence based on facts found by the court. See United States v.
Booker, 543 U .S. 220, 243-44 (2005). Leiker’s argument fails, however, because
the district court did not apply the Guidelines in a mandatory fashion. A district
court commits constitutional Booker error only when it mandatorily increases a
sentence on the basis of judge-found facts, other than the fact of a prior
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conviction. United States v. Gonzales-Huerta, 403 F.3d 727, 731 (10th Cir.
2005) (en banc). The record clearly reveals the district court did not apply the
Sentencing Guidelines in a mandatory fashion. At Leiker’s sentencing hearing,
the district court stated,
The guidelines have not been eviscerated by Booker and Fanfan, but
it’s one of the factors that the Court has to consider, and it’s an
essential factor in my view. It can be said, I think further, that the
guidelines w ill likely be seen in most respects as presumptively
reasonable, but that does not preclude a judge from exercising
judgment.
....
This Court will look upon the guidelines, therefore, as a
necessary step in the sentencing process; that I must refer to these
guidelines and to give them their due weight; but the Court will
sentence according to statute and consider all the factors under 18
United States Code 3553(a).
Immediately before it pronounced Leiker’s sentence, the court further stated that
it had considered “all the provisions of 18 United States Code 3553(a) and the
need for this Court to impose a sentence which reflects the seriousness of the
offense, which promotes respect for the law and provides just punishment for
your offense, which provides some degree of deterrence and hopefully will deter
others from following your path, to protect the public from further crimes by
you.”
Booker directs a sentencing court to consider, inter alia, the factors set out
in 18 U.S.C. § 3553(a) when determining a sentence. 543 U.S. at 245-46; see
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also United States v. Contreras-M artinez, 409 F.3d 1236, 1242 (10th Cir. 2005)
(“[W]e do not demand that the district court recite any magic words to show us
that it fulfilled its responsibility to be mindful of the factors that Congress has
instructed it to consider.” (quotations omitted)). Our review of the district
court’s statements and the entire transcript of the sentencing proceeding
convinces us the court was w ell aw are that Booker prohibits the mandatory
application of the Sentencing Guidelines.
Leiker’s appellate argument could also be construed as an assertion the
district court miscalculated the applicable guidelines range. See United States v.
Doe, 398 F.3d 1254, 1257 n.5 (10th Cir. 2005) (“Although the G uidelines are
now advisory . . . . appellate review continues to encompass review of the district
court’s interpretation and application of the Guidelines.” (citation omitted)).
That argument, however, also fails. The PSR recommended an offense level of
thirty-eight, based on the conclusion Leiker’s conduct involved the distribution of
more than fifteen kilograms of methamphetamine. W e have already concluded
the district court did not violate Leiker’s Sixth Amendment rights by making
factual findings to enhance her sentence. Even after Booker, however, this court
reviews the district court’s factual findings for clear error. United States v.
Zunie, 444 F.3d 1230, 1236 (10th Cir. 2006). At the sentencing hearing, the
government presented the testimony of Steven Woodson, an agent with the Drug
Enforcement Administration. W oodson testified that Amador M oreno stated he
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began distributing three-pound quantities of methamphetamine to Leiker every
ten or eleven days in 2001. Amador M oreno further stated the amounts he
delivered to Leiker increased to eight to ten pounds every ten or eleven days.
W oodson also testified that Pedro M oreno stated he personally delivered ten to
fifteen pounds of methamphetamine to Leiker every two months over the course
of an eighteen to twenty-four month period. Based on this portion of W oodson’s
testimony, the district court’s drug-quantity finding was not clearly erroneous.
The record demonstrates the district court considered both the sentencing
factors listed in § 3553(a) and Leiker’s objection to the court’s findings on drug
quantity. After a review of the record, we agree with counsel that there is no
basis upon which Leiker can challenge her sentence as either unreasonable or
unconstitutional under Booker. The only other possible basis for an appeal must
relate to Leiker’s conviction. Having independently reviewed the record, we can
find no basis for a claim that Leiker’s conviction was not supported by sufficient
evidence or that the district court abused its discretion when it made any
evidentiary rulings. Our review of the record reveals no other claims arguable on
their merits, and we accordingly conclude Leiker’s appeal is wholly frivolous.
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Counsel’s motion to w ithdraw is granted and this appeal is dismissed. All
outstanding motions are denied.
ENTERED FOR THE COURT
M ichael R. M urphy
Circuit Judge
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