FILED
United States Court of Appeals
Tenth Circuit
February 18, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-4043
v. (D.C. No. 08-CR-00092-TS-1)
GARY DUANE DALEY, (D. Utah)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
After examining counsel’s Anders brief and the appellate record, this panel
has determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This case is therefore ordered submitted without oral argument.
Following the filing of criminal charges against him, Appellant pled guilty
to possessing methamphetamine with the intent to distribute. Although the
district court calculated the applicable Sentencing Guidelines range to be seventy
to eighty-seven months of imprisonment, the court varied below the Guidelines
*
This order and judgment is not binding precedent, except under the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.
and imposed a sentence of sixty months, the statutory mandatory minimum for
Appellant’s offense. See 21 U.S.C. § 841(b)(1)(B). On appeal, Appellant’s
counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
explaining why counsel believes there to be no reasonable grounds for appeal.
Appellant and the government were both given the opportunity to file a response
to the Anders brief, but neither did so.
When defense counsel files an Anders brief, we are required to conduct “a
full examination of all the proceedings, to decide whether the case is wholly
frivolous.” Id. at 744. Thus, “defense counsel who file an Anders brief generally
should ensure that copies of all possibly relevant transcripts are included in the
record on appeal” so the record will be “adequate . . . to satisfy both counsel’s
obligation to his or her client and our appellate review obligation under Anders.”
United States v. Delacruz-Soto, 414 F.3d 1158, 1161 (10th Cir. 2005).
In this case, despite our repeated admonitions and reminders to counsel of
his obligations in connection with this appeal, counsel has failed to file an
adequate appendix that includes all relevant transcripts. Nevertheless, we have
obtained the record online and fully reviewed all of the district court proceedings,
including all transcripts. Having done so, we agree with counsel that Appellant
has no non-frivolous grounds he could raise on appeal.
Nothing in the plea agreement or plea colloquy suggests a valid basis on
which Appellant could challenge the entry of his plea of guilty. As for
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Appellant’s sentence, we see no meritorious ground on which Appellant could
challenge the length or constitutionality of the mandatory minimum sentence 1 he
received. See United States v. Garcia-Fuentes, 250 F. App’x 886, 887 (10th Cir.
2007) (finding no meritorious basis for a defendant to appeal the imposition of a
sixty-month mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(B));
United States v. Hatch, 925 F.2d 362, 363 (10th Cir. 1991) (rejecting the
argument that mandatory minimum sentences violate the Eighth and Fifth
Amendments); United States v. Angelos, 433 F.3d 738, 750-53 (10th Cir. 2006)
(rejecting an Eighth Amendment challenge to a mandatory sentence of fifty-five
years for drug and firearm offenses committed by a defendant with no prior adult
criminal history).
Our thorough review of the record persuades us that Appellant can raise no
meritorious issue on appeal. We therefore GRANT counsel’s motion to withdraw
and DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
1
Although there are two possible ways to receive a sentence below this
mandatory minimum, the record does not suggest that Appellant was qualified for
either. See 18 U.S.C. § 3553(e) (permitting a below-Guidelines sentence “[u]pon
motion of the Government” where a defendant has substantially assisted “in the
investigation or prosecution of another person who has committed an offense”);
id. § 3553(f) (permitting disregard of statutory minimums for certain offenses
where, inter alia, the defendant did not possess a firearm in connection with the
offense).
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