FILED
United States Court of Appeals
Tenth Circuit
December 15, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-1531
v. (D. Colorado)
HAROLD M. CARMENOROS, (D.C. No. 06-cr-00149-LTB-01)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, ANDERSON and BALDOCK, Circuit Judges.
Harold M. Carmenoros pleaded guilty to one count of possessing a firearm
after a felony conviction, in violation of 18 U.S.C. § 922(g)(1). The district court
rejected the provision of Mr. Carmenoros’s plea agreement in which the parties
agreed to a 36-month sentence that would be served concurrently with a state
sentence. It then sentenced him to a 63-month sentence—within the advisory
Guidelines range.
*
This order and judgment is not binding precedent except under the doctrines of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.
Mr. Carmenoros now appeals. His counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that “there are no legally
viable, non-frivolous issues to appeal in this case.” Aplt’s Br. at 13. We agree
and therefore affirm Mr. Carmenoros’s conviction and sentence.
I. BACKGROUND
In April 2006, a federal grand jury indicted Mr. Carmenoros on three
counts of possession of a firearm after conviction of a felony, violations of 18
U.S.C. § 922(g)(1). The counts charged possession of three different firearms on
the same day—November 20, 2005.
Mr. Carmenoros and the government entered into a plea agreement pursuant
to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, which provides in
part that the government and the defendant may “agree that a specific sentence or
sentencing range is the appropriate disposition of the case.” Under the
agreement, Mr. Carmenoros stated that he would plead guilty to count 3 of the
indictment, which charged that he had possessed a Parker Hale 7 mm rifle on
November 20, 2005 after having been convicted of a felony in November 1992.
In turn, the government stated that it would dismiss counts 1 and 2 of the
indictment. Both parties agreed “that a 36-month sentence is an appropriate
sentence after taking into account the factors set forth in 18 U.S.C. § 3553(a).”
Rec. vol. I, doc. 26, at 2. In addition, the parties agreed that this federal sentence
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would be served concurrently with a state sentence that Mr. Carmenoros was
already serving.
On the same day that the parties entered into the agreement, the district
court conducted a change of plea hearing. Mr. Carmenoros informed the court
that he understood the charge and responded affirmatively to the question whether
he was pleading guilty to count 3 “freely and voluntarily.” Rec. vol. II, at 15.
The court found that there was a factual basis for Mr. Carmenoros’s plea and that
his plea “has been entered with full competence, knowingly, intelligently and
voluntarily.” Id. at 16. However, the court delayed acceptance of the plea until
review of the presentence report.
After reviewing the presentence report, the district court found that it could
not approve the 36-month sentence to which the parties agreed. Pursuant to Rule
11(c)(5) of the Federal Rules of Criminal Procedure, the court told Mr.
Carmenoros that he had the opportunity to either (a) withdraw his guilty plea and
go to trial or (b) affirm the guilty plea, which would allow the court to impose a
different sentence. Mr. Carmenoros affirmed his guilty plea, and the court
imposed a 63-month sentence.
II. DISCUSSION
In Anders, the Supreme Court held that if a defendant’s counsel “finds [the
defendant’s] case to be wholly frivolous, after a conscientious examination of it,
he should so advise the court and request permission to withdraw.” 386 U.S. at
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744. Counsel must submit to both the court and his client a “brief referring to
anything in the record that might arguably support the appeal.” Id. The
defendant may then “raise any points that he chooses.” Id.
The reviewing court must examine all the proceedings to determine whether
the appeal is frivolous. Id. “If it so finds it may grant counsel’s request to
withdraw and dismiss the appeal.” Id. “On the other hand, if it finds any of the
legal points arguable on their merits (and therefore not frivolous) [the reviewing
court] must, prior to decision, afford the indigent [defendant] the assistance of
counsel to argue the appeal.” Id.
Here, Mr. Carmenoros’s counsel reports that his client has requested him to
challenge the district court’s refusal to give him credit for time spent in state
custody under a federal detainer. “Mr. Carmenoros believes this is especially
problematic because the sentencing judge did explicitly order the federal sentence
‘to run concurrently’ with his state sentence.” Aplt’s Br. at 29 (quoting Rec. vol
I, doc. 33, at 2). He invokes 18 U.S.C. § 3585(b), which provides:
A defendant shall be given credit toward the service of a term of
imprisonment for any time he has spent in official detention prior to the
date the sentence commences--
(1) as a result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant was arrested
after the commission of the offense for which the sentence was imposed;
that has not been credited against another sentence.
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We agree with Mr. Carmenoros’s counsel that this challenge is frivolous.
In United States v. Wilson, 503 U.S. 329, 333 (1992), the Supreme Court held that
“[a] district court . . . cannot apply § 3585(b) at sentencing.” Instead, the
Attorney General, acting through the Bureau of Prisons, is vested with this
responsibility. See United States v. Jenkins, 38 F.3d 1143, 1144 (10th Cir. 1994)
(holding that “the district court lacked jurisdiction to award any sentence credit to
Defendant . . . [;] only the Bureau of Prisons has the power to grant sentence
credit in the first instance.”).
Additionally, having thoroughly reviewed the record, we agree with Mr.
Carmenoros’s counsel that there are no other non-frivolous challenges to his
conviction and sentence. There was a factual basis for Mr. Carmenoros’s plea,
and it was knowing and voluntarily entered. The district court followed the
provisions of Rule 11 of the Federal Rules of Criminal Procedure in accepting the
plea; the 63-month sentence was within the advisory Guideline range and was
procedurally and substantively reasonable; and the court properly considered the
factors set forth in 18 U.S.C. § 3553(a) in imposing the sentence. 1
1
Mr. Carmenoros’s counsel served his Anders brief upon Mr. Carmenoros, and
this court has afforded Mr. Carmenoros and opportunity to respond. However,
Mr. Carmenoros has not filed a response.
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III. CONCLUSION
We therefore GRANT Mr. Carmenoros’s counsel’s request to withdraw and
AFFIRM Mr. Carmenoros’s conviction and sentence.
Entered for the Court,
Robert H. Henry
Chief Judge
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