F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 18, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-1061
(D.C. No. 03-CR-00605 M SK)
FLA VIO PELA YO-TO RR ES, (D . Colo.)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before L UC ER O, M cKA Y, and GORSUCH, Circuit Judges.
Defendant Flavio Pelayo-Torres pled guilty to one count of unlawful
reentry of a deported alien subsequent to an aggravated felony 1 conviction, for
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
A n aggravated felony is defined in 8 U.S.C. § 1101(a)(43). U.S.S.G.
§ 2L1.2(b)(1)(C), app. n.3. Section 1101(a)(43)(B) defines an aggravated felony
as illicit trafficking in a controlled substance, as defined by 21 U.S.C. § 802(6),
including a drug trafficking crime, as defined by 18 U.S.C. § 924(c)(2). A drug
trafficking crime is any felony punishable under the Controlled Substances A ct,
21 U.S.C. § 801 et seq. 18 U.S.C. § 924(c)(2).
possession/sale of cocaine base, in violation of 8 U.S.C. § 1326(a) and (b)(2).
Pursuant to a written plea agreement under Fed. R. Crim. P. 11(c)(1)(C), the
district court sentenced him to seventy-seven months’ imprisonment, followed by
three years of supervised release. He appeals his imprisonment sentence.
M r. Pelayo-Torres’ counsel filed an Anders brief, indicating that this court
lacks jurisdiction to review the sentence and therefore the appeal is frivolous, and
she moved to withdraw as counsel. See Anders v. California, 386 U.S. 738
(1967). M r. Pelayo-Torres filed a pro se response arguing, based on United States
v. Booker, 543 U.S. 220 (2005), and Apprendi v. New Jersey, 530 U.S. 466
(2000), that his Sixth Amendment rights were violated by the district court’s, and
not a jury’s, finding that he had been previously convicted of an aggravated
felony. The government declined to file a brief.
After counsel’s Anders brief was filed, the Supreme Court decided Lopez v.
Gonzales, 127 S. Ct. 625 (2006). Lopez held that a state drug trafficking offense
is an aggravated felony if it would be punished as a felony under the Controlled
Substances Act, 21 U.S.C. § 801 et seq. Lopez, 127 S. Ct. at 629-31, 633; see
also United States v. M artinez-M acias, 472 F.3d 1216, 1217, 1218 (10th Cir.
2007) (applying Lopez in § 1326 case where aggravated felony was state felony
conviction for possession of cocaine). W e asked the parties to file briefs
addressing what effect, if any, Lopez has on this case. The government argues
that Lopez has no effect and this court lacks jurisdiction to review the length of
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M r. Pelayo-Torres’ sentence. M r. Pelayo-Torres’ counsel argues that under Lopez
the aggravated felony portion of the sentence must be set aside. Counsel,
however, has not withdrawn her motion to withdraw. For the reasons discussed
below, we grant M r. Pelayo-Torres’ counsel’s motion to withdraw and dismiss the
appeal.
I
M r. Pelayo-Torres is a citizen of M exico. In 1996, he was convicted in
California of felony possession of cocaine base with intent to sell in violation of
California Health & Safety Code § 11351.5 and sentenced to two years’
imprisonment. In July 2002, he was deported to M exico, having been deported to
M exico on five other occasions. M r. Pelayo-Torres returned to the United States
yet again and was found in Colorado on M arch 23, 2003.
The government charged him with unlawful reentry of a deported alien
subsequent to an aggravated felony conviction in violation of § 1326(a) and
(b)(2). M r. Pelayo-Torres and the government entered into a plea agreement in
which he agreed to plead guilty to the charge in exchange for the government’s
stipulation to a sentence at the bottom of the applicable Sentencing Guidelines
range. At the plea hearing, the district court deferred acceptance of the plea
agreement until the time of sentencing. Upon receiving and reviewing the
Presentence Report, the district court accepted the stipulation and plea agreement
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and, in compliance with Rule 11(c)(1)(C) and following the plea agreement, 2
sentenced M r. Pelayo-Torres to seventy-seven months’ imprisonment. At
sentencing, the parties made no objections to the factual contents of the
Presentence Report or its calculation of the sentence under the G uidelines;
neither did they contend that a non-G uidelines sentence was appropriate.
II
Under Anders, “counsel [may] request permission to withdraw [from an
appeal] 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) (citing Anders, 386 U.S. at 744). This process requires counsel
to
submit a brief to the client and the appellate court indicating any
potential appealable issues based on the record. The client may then
choose to submit arguments to the court. 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. (internal citations to Anders, 386 U.S. at 744, omitted). W e conclude, after
examining the record and the relevant law , that M r. Pelayo-Torres’ appeal of his
sentence meets this standard.
2
Under Rule 11(c)(1)(C), a stipulated sentence “binds the court once the
court accepts the plea agreement.”
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Under Rule 11(c)(1)(C), parties entering into a plea agreement may “agree
that a specific sentence or sentencing range is the appropriate disposition of the
case, . . . (such a recommendation or request binds the court once the court
accepts the plea agreement).” Because M r. Pelayo-Torres agreed to and received
the specific sentence set forth in the Rule 11(c)(1)(C) plea agreement, he may
appeal his sentence only if it was imposed (1) in violation of the law ; (2) due to
an incorrect application of the Sentencing Guidelines; or (3) in excess of the
sentence set forth in the plea agreement. 18 U.S.C. § 3742(a), (c); see Calderon,
428 F.3d at 932. Otherw ise, this court lacks jurisdiction over this appeal. See
Calderon, 428 F.3d at 932.
M r. Pelayo-Torres’ sentence was not imposed in violation of the law.
In addressing this issue, we first consider Lopez. M r. Pelayo-Torres’ 1996
conviction for possession/sale of crack cocaine base, a drug trafficking crime,
would be punished under the Controlled Substances A ct as felony possession with
intent to distribute a controlled substance. See 21 U.S.C. § 841. This conviction
therefore is not for mere possession prohibited by 21 U.S.C. § 844, 3 and, thus,
Lopez has no effect on this case. See Lopez, 127 S. Ct. 629-30 & n.4 (recognizing
that federal statutes typically treat trafficking as felony and possession as
3
California differentiates between possession with intent to sell and mere
possession. Compare Cal. Health & Safety Code § 11351.5 (possession
of cocaine base for sale) with id. § 11350 (possession of cocaine base, see
Cal. H ealth & Safety Code §11054(f)(1)).
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misdemeanor); see also United States v. Chavez-Avila, No. 06-4169, 2007 W L
293530, at *1 & n.2 (10th Cir. Feb. 2, 2007) (unpublished) (deciding Lopez had
no effect in § 1326 case where enhancement was California conviction for
possession/sale of controlled substance).
Pointing to the language of the Presentence Report, 4 M r. Pelayo-Torres
argues that under Lopez his sentence was improperly enhanced because there is no
indication that he was the actual seller of drugs and trafficking is required for an
aggravated felony conviction. In addition, he argues that there is no indication
that the amount of drugs found was more than for personal use–a federal
misdemeanor. Such arguments do not help his cause in this appeal. Lopez does
not authorize a federal court to look at the underlying facts of the state
conviction; rather, Lopez considered the state conviction in relation to federal law
w ithout reexamining the validity of the underlying conviction. Accordingly, we
must assume the validity of M r. Pelayo-Torres’ 1996 conviction for
possession/sale of cocaine base, and he may not collaterally attack that conviction
4
The Presentence Report recites the following facts:
undercover officers solicited an individual to purchase a small
amount of crack cocaine. This individual then traveled to an
apartment, and returned a short time later, giving the undercover
officer a small rock of cocaine in exchange for $20. Officers then
entered the apartment, and arrested [M r. Pelayo-Torres], and found
an unknown amount of crack cocaine.
Presentence Report at 9.
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in this appeal. See Custis v. United States, 511 U.S. 485, 487, 497 (1994)
(deciding that defendant may not use federal-sentencing forum to collaterally
attack validity of prior state convictions used for sentence enhancement, except
for convictions obtained in violation of right to counsel); United States v.
Delacruz-Soto, 414 F.3d 1158, 1166-67 (10th Cir. 2005) (applying Custis to case
addressing § 1326 and U.S.S.G. § 2L1.2).
Having concluded that Lopez has no effect on this appeal, we proceed to
consider M r. Pelayo-Torres’ remaining arguments. He first contends that his
sentence was imposed in violation of the law because the indictment did not
allege that he had been convicted of committing an aggravated felony before his
deportation. This is simply incorrect. See R., Vol. I, Doc. 1. In any event, there
is no such charging requirement. See Almendarez-Torres v. United States,
523 U.S. 224, 226-27, 247 (1998) (holding that neither § 1326 nor Constitution
requires government to charge in indictment earlier conviction used to increase
sentence of recidivist); see also United States v. M oore, 401 F.3d 1220, 1223-24
(10th Cir. 2005) (recognizing that Booker did not overrule Almendarez-Torres).
Citing Booker and Apprendi, M r. Pelayo-Torres next argues that his Sixth
Amendment rights were violated when the judge and not a jury found that he had
been convicted of an aggravated felony previously. W ithout the
aggravated-felony finding, he contends he would have been subject to only a
tw o-year maximum sentence. See 8 U.S.C. § 1326(a). In Booker, 543 U.S. at
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244, the Supreme Court “reaffirm[ed] [its] holding in Apprendi [that a]ny fact
(other than a prior conviction) which is necessary to support a sentence exceeding
the maximum authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury beyond a reasonable
doubt.” Clearly, “Booker . . . is not implicated w here the district court accepts a
stipulated sentence under a Rule 11(c)(1)(C) plea bargain.” See United States v.
Graham, 466 F.3d 1234, 1240 (10th Cir. 2006); see also United States v. Silva,
413 F.3d 1283, 1284 (10th Cir. 2005) (“nothing in Booker undermines the validity
of sentences imposed under Rule 11(c)(1)(C)”).
Because M r. Pelayo-Torres’ sentence conformed to the stipulated sentence
in his plea agreement and w as less than the statutory maximum of twenty years,
see 8 U .S.C. § 1326(b)(2), it did not violate the law. That is, because
M r. Pelayo-Torres’ sentence arises from the plea agreement, not from the
Guidelines, the district court could not apply the Guidelines incorrectly; and,
because M r. Pelayo-Torres received exactly the sentence he bargained for, he
cannot argue the district court exceeded its authority under the terms of his plea
agreement. See Calderon, 428 F.3d at 932.
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* * *
This appeal is dismissed for lack of jurisdiction. Counsel’s motion to
withdraw is granted.
Entered for the Court
Neil M . Gorsuch
Circuit Judge
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