FILED
United States Court of Appeals
Tenth Circuit
June 16, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 13-2125
v. (D.Ct. No. 2:11-CR-01587-WJ-3)
(D. N.M.)
JOSE LIONEL GONZALES,
Defendant - Appellant.
______________________________
ORDER AND JUDGMENT *
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
submitted without oral argument.
Appellant Jose Lionel Gonzales pled guilty to one count of conspiracy to
possess with intent to distribute fifty grams or more of methamphetamine, in
*
This order and judgment is not binding precedent except under the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.
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; and one count of aiding
and abetting in possession with intent to distribute fifty grams or more of
methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1),
(b)(1)(A). The district court sentenced him to the mandatory minimum sentences
of 120 months on both counts, to run concurrently. While Mr. Gonzales appeals
his sentences, his attorney has filed an Anders brief and a motion to withdraw as
counsel. See Anders v. California, 386 U.S. 738, 744 (1967). For the reasons set
forth hereafter, we grant counsel’s motion to withdraw and dismiss this appeal.
I. Factual and Procedural Background
On October 18, 2010, an undercover agent met with Osvaldo Espinoza in a
parking lot in Hatch, New Mexico, regarding the purchase of several pounds of
methamphetamine. On November 27, 2010, the agent proceeded to a meeting
location in Chaparral, New Mexico, where Mr. Espinoza and another person
arrived and explained the requested methamphetamine could be picked up at a
different location in El Paso, Texas. When the agent refused to travel to El Paso,
other arrangements were made, and shortly thereafter an SUV arrived containing
a driver and Mr. Gonzales as the passenger. After a short discussion, Mr.
Espinoza asked Mr. Gonzales to show the methamphetamine to the agent, at
which time Mr. Gonzales removed a white bag from underneath his shirt and
placed it before the agent. At that point, the individuals participating in the drug
sale, including Mr. Gonzales, were arrested, and another six bindles of cocaine
-2-
were found in Mr. Gonzales’s possession. The agent provided Mr. Gonzales his
Miranda rights, after which he admitted the cocaine was his, stating it was for his
personal use. The net weight of the drugs obtained consisted of 260.67 actual
grams of methamphetamine and 2.73 grams of cocaine.
On February 13, 2013, Mr. Gonzales pled guilty to the methamphetamine
counts charged. During his plea hearing, the federal magistrate advised him of
his constitutional rights, and during the Rule 11 colloquy, Mr. Gonzales
acknowledged he understood the rights he was waiving in pleading guilty. Mr.
Gonzales also acknowledged he made his plea knowingly and voluntarily and
understood the charges against him. At one point, government counsel stated Mr.
Gonzales faced a “maximum” penalty of ten years in prison on both counts and “a
maximum penalty of ten years ... to [life] in prison”; thereafter, Mr. Gonzales
stated to the magistrate that he understood the penalties which applied to both
counts. Mr. Gonzales also agreed to the facts which the government stated the
evidence would show concerning the charges against him.
After the magistrate accepted his plea agreement, a probation officer
prepared a presentence report calculating his sentence under the applicable 2012
United States Sentencing Guidelines. The probation officer thoroughly outlined
the facts supporting the charges to which Mr. Gonzales pled guilty and set his
base offense level at 31 due to the amounts of methamphetamine and cocaine for
which he was responsible. He then reduced Mr. Gonzales’s offense level two
-3-
levels, because he was a minor participant, and an additional three levels for his
acceptance of responsibility, for a total offense level of 26. This, together with a
criminal history category of IV, resulted in an advisory sentencing range of 92 to
115 months imprisonment. However, because the mandatory minimum term of
imprisonment on both counts was ten years, the probation officer noted the
applicable Guidelines sentence was 120 months imprisonment.
Mr. Gonzales did not object to the facts in the presentence report or
calculation of his sentence, including the requirement for imposition of the
mandatory minimum sentence, and, at sentencing, his counsel verified the
statutory minimum sentence was ten years. Accordingly, the district court
imposed 120-month concurrent sentences.
II. Discussion
After Mr. Gonzales filed a notice of appeal, his counsel filed an Anders
motion and appeal brief, explaining a review of the record revealed no
nonfrivolous issues to appeal in this case and moving for an order permitting
withdrawal as counsel. See Anders, 386 U.S. at 744. In support of her Anders
filing, counsel notes Mr. Gonzales voluntarily entered a plea of guilty and was
sentenced to statutory, mandatory minimum sentences, leaving no issues
supporting an appeal. In an effort to find any issues of merit, counsel points to an
error during the Rule 11 colloquy in which government counsel mis-spoke and
stated the mandatory “maximum” sentence, rather than the “minimum” sentence,
-4-
was ten years, which she also points out the magistrate failed to correct. Even
with such an error, however, she acknowledges no plain error exists, given Mr.
Gonzales was correctly informed the sentence was ten years to life and nothing in
the record suggests he would not have pled guilty had the error not occurred. In
addition, Mr. Gonzales’s counsel notes “the United States Judiciary Committee is
scheduled to meet to discuss mandatory minimum sentencing reform” and
“Attorney General Eric Holder has introduced a policy for federal prosecutors to
charge certain offenders in a manner that will avoid the minimum sentences.”
Nevertheless, she acknowledges “[t]he policies that are set forth in the Attorney
General memorandum do not confer any rights, privileges, or benefits in any case
or proceeding” and that the district court was bound to issue a minimum sentence
of 120 months in the instant case.
Pursuant to Anders, this court gave Mr. Gonzales an opportunity to respond
to his counsel’s Anders brief. See 386 U.S. at 744. Mr. Gonzales filed a response
contesting his conviction by disagreeing with certain facts presented in the
presentence report which he suggests incorrectly implicate him in “Direct Heavy
Weight drug activity.” While he admits he possessed the methamphetamine at
issue and was “in the wrong place at the wrong time,” he contends neither the
government nor the evidence shows he acted in a “Pattern of Compulsive agreed
Criminal Activity, with an intent to indulge,” was part of the conspiracy charged,
or aided and abetted the conspirators. Therefore, he suggests his guilty plea has
-5-
no factual basis and further cursorily claims his guilty plea was both unknowing
and induced by counsel rather than willingly made. The government has filed a
notice of its intention not to file an answer brief in this appeal.
As required by Anders, we have conducted a full examination of the record
before us. See 386 U.S. at 744. While Mr. Gonzales’s appellate counsel raises
the possibility of issues affecting his guilty plea and sentencing, she admits (and
we agree) nothing in the record rises to the plain error required. As she
acknowledges, the accurate statutory range of ten years to life was announced at
Mr. Gonzales’s plea hearing, and nothing shows he would not have pled guilty
had government counsel not mis-spoke by calling the ten-year mandatory
minimum sentence his “maximum” sentence. With respect to any government
policy on what charges to bring against certain defendants, it is clearly
inapplicable to our consideration on appeal and, further, meritless. Here, the
government sought charges which, by statute, require mandatory minimum
sentences of ten years and from which the district court correctly did not deviate.
As to Mr. Gonzales’s pro se arguments, the record shows he entered his
guilty plea knowingly and voluntarily and, at his plea hearing, admitted to facts
presented which were sufficient to support both the conspiracy and aiding and
abetting drug charges against him. He also did not object at the sentencing
hearing to the same or similar facts contained in the presentence report. His
attempt to now challenge those facts on appeal is neither persuasive nor supported
-6-
by the record, and he has not shown why he failed to object to them earlier.
Thus, our review establishes no nonfrivolous basis for challenging the sentences
imposed. Instead, the record clearly supports the district court’s imposition of the
mandatory ten-year sentences.
III. Conclusion
For these reasons, we GRANT counsel’s motion to withdraw and
DISMISS this appeal.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
-7-