FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-10368
v.
D.C. No.
CR-05-00546-NVW
JOSE ANGEL BELTRAN-MORENO, aka
El Tan Beltran,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-10370
v.
ABRAHAM BELTRAN-MORENO, aka D.C. No.
CR-05-00546-NVW
Abram aka Abram Beltran-Moreno
OPINION
aka Adrian Beltran-Figueroa,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted January 15, 2009*
San Francisco, California
Filed February 10, 2009
Before: Procter Hug, Jr., Stephen Reinhardt and
A. Wallace Tashima, Circuit Judges.
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
1585
1586 UNITED STATES v. BELTRAN-MORENO
Opinion by Judge Reinhardt
1588 UNITED STATES v. BELTRAN-MORENO
COUNSEL
Brian G. Larson, Assistant United States Attorney, United
States Attorney’s Office for the District of Arizona, Phoenix,
Arizona, for the plaintiff-appellee.
Lynn T. Hamilton, Hamilton Law Office, Mesa, Arizona, for
defendant-appellant Jose Beltran-Moreno.
James Sun Park, Park Law Office, Phoenix, Arizona, for
defendant-appellant Abraham Beltran-Moreno.
OPINION
REINHARDT, Circuit Judge:
After pleading guilty to a multiple-count indictment charg-
ing, inter alia, two independent firearms counts under 18
U.S.C. § 924(c), Jose and Abraham Beltran-Moreno benefit-
ted from the district court’s erroneous construction of that
statute at sentencing. They should have quit while they were
UNITED STATES v. BELTRAN-MORENO 1589
ahead. As the Supreme Court made clear fifteen years ago in
Deal v. United States, 508 U.S. 129 (1993), when the govern-
ment charges more than one § 924(c) offense in a single
indictment, each additional count is to be treated as a “second
or subsequent conviction” for purposes of 18 U.S.C.
§ 924(c)(1)(C)(i) and therefore carries a mandatory minimum
sentence of twenty-five years. Because § 924(c)(1)(D)(ii)
requires that “no term of imprisonment imposed on a person
under this subsection shall run concurrently with any other
term of imprisonment imposed,” each independent § 924(c)
count in the indictment imposes a consecutive sentence on top
of any other sentence imposed, either under § 924(c) or under
any other counts for which the defendant has been convicted.
In this case, the defendants pled guilty to various drug
offenses that, taken together, imposed a mandatory minimum
sentence of ten years.1 They also pled guilty to two § 924(c)
charges, the first of which required a mandatory minimum
sentence of five years and the second of which required an
additional sentence of twenty-five years. Because the statute
does not allow any of these sentences to run concurrently, the
mandatory minimum sentence for both defendants was forty
years in prison.
The district court, however, was not familiar with Deal.
Accordingly, despite the government’s argument for a forty-
year minimum sentence, the court held, quite understandably,
1
We note for the record that there appears to be an error in the formal
judgments of conviction for both defendants. Compare Reporter’s Tran-
script of Proceedings (Status Conference/Change of Plea) at 35-37, United
States v. Beltran-Moreno, No. 05-00546-NVW (D. Ariz. March 8, 2007)
(No. 452), and Superceding Indictment at 3, Beltran-Moreno, No. 05-
00546-NVW (D. Ariz. June 8, 2005) (No. 43) (showing surplusage
crossed-out), with Judgment in a Criminal Case at 1, Beltran-Moreno, No.
05-00546-NVW (D. Ariz. July 7, 2007) (Nos. 392, 393) (formal judg-
ments including surplusage). Because these discrepancies have no bearing
on this appeal and were not raised by the parties, we note them simply in
the event that they may be relevant for some future proceeding.
1590 UNITED STATES v. BELTRAN-MORENO
that multiple § 924(c) counts in a single indictment do not
trigger the “second or subsequent” provision. As a result, the
court added only two five-year sentences — as opposed to a
five-year sentence and a twenty-five-year sentence — to the
ten-year minimum required by the drug offenses. This was
error, the result of which was the calculation of a mandatory
minimum sentence of twenty years, which was twenty years
lower than that required by statute, a sentence that would
seem quite reasonable, but for the Court’s decision in Deal.
Remarkably, the defendants’ good fortune did not stop
here. Under the United States Sentencing Guidelines, each
defendant’s offense conduct established an offense-level score
of over forty-two points. Regardless of a defendant’s criminal
history, the Guidelines recommend that someone convicted of
so high an offense level be sentenced to no less than life in
prison. See U.S.S.G. § 5A. However, as has been clear since
United States v. Booker, 543 U.S. 220 (2005), the Sentencing
Guidelines are now merely advisory. The Beltrans were fortu-
nate enough to be sentenced by a district judge who appears
to have taken Booker’s mandate to heart. Taking into account
the defendants’ characteristics, the nature of their crimes, and
other relevant factors, the district judge exercised his discre-
tion under 18 U.S.C. § 3553(a) to depart downward from the
Guidelines recommendation, sentencing the defendants to
thirty-five years in prison instead of imprisoning them for the
rest of their lives as the Guidelines suggest, but no longer
mandate.
In the end, the defendants did not just avoid life sentences.
Because of the district court’s unawareness of Deal, they
received sentences five years below the mandatory minimum.
Such good fortune does not come often in our criminal justice
system, especially in prosecutions under § 924(c), which fre-
quently result in extremely harsh sentences. Cf. United States
v. Hungerford, 465 F.3d 1113, 1119 (9th Cir. 2006) (Rein-
hardt, J., concurring in the judgment) (criticizing a sentence
of 159 years imposed pursuant to § 924(c) on “a 52 year-old
UNITED STATES v. BELTRAN-MORENO 1591
mentally disturbed woman with no prior criminal record” who
never touched a gun and believed herself to be actually inno-
cent); United States v. Harris, 154 F.3d 1082, 1084 (9th Cir.
1998) (“urg[ing] Congress to reconsider its scheme of manda-
tory consecutive minimum sentences”). As a result of the dis-
trict court’s exercise of discretion and its separate statutory
miscalculation, the Beltrans dodged two bullets: the Guide-
lines’ recommended life sentence, and the mandatory mini-
mum sentence required by § 924(c).
[1] The Beltrans’ trial counsel had the good sense not to
object to the district court’s sentence, which — given that it
was lower than legally permitted — was certainly better than
they could have possibly imagined. Their appellate counsel,
however, have exhibited anything but good sense. For reasons
beyond our understanding, the Beltrans have appealed their
sentences, arguing that instead of imposing a mandatory mini-
mum of twenty years, the district court should have consoli-
dated the two § 924(c) sentences into a single five-year term
and imposed a fifteen-year minimum sentence for each of
them. This argument is squarely foreclosed by decades-old
circuit precedents. As we held in United States v. Smith, a
defendant may be convicted and sentenced for multiple viola-
tions of § 924(c) so long as “each 924(c)(1) count [is] sup-
ported by a separate predicate offense.” 924 F.2d 889, 894
(9th Cir. 1991) (citing United States v. Fontanilla, 849 F.2d
1257, 1259 (9th Cir. 1988)). Whether or not one predicate
offense is independent from another depends on whether the
two offenses would be independent for double jeopardy pur-
poses under the Blockburger test. See United States v. Cas-
taneda, 9 F.3d 761, 765 (9th Cir. 1993) (“[I]f the elements of
the two predicate offenses are different, each may form the
basis of a firearm count notwithstanding that both offenses
stem from the same set of facts.”); cf. Blockburger v. United
States, 284 U.S. 299 (1932). In this case, the two § 924(c)
counts are respectively predicated on possession with intent to
distribute methamphetamine, 21 U.S.C. §§ 841(a),
(b)(1)(A)(viii), and possession with intent to distribute
1592 UNITED STATES v. BELTRAN-MORENO
cocaine, id. §§ 841(a), (b)(1)(A)(iii). As this court has
squarely held, “charging a defendant with separate counts [of
‘possession with intent to distribute’] for different controlled
substances is not multiplicitous and does not violate double
jeopardy.” United States v. Vargas-Castillo, 329 F.3d 715,
720, 722 (9th Cir. 2003). Accordingly, the government was
entitled to charge the defendants with two separate § 924(c)
counts, and, once they pled guilty to those counts, the district
court was required to impose consecutive minimum sentences
of five and twenty-five years on top of the ten-year mandatory
minimum that attached to the drug charges. Counsel do not
urge us to reconsider any of these precedents; rather, they
appear simply to be ignorant of the controlling law.
[2] In short, if the Beltrans’ sentences were to be altered,
there appears to be only one direction in which they could go,
and that is up — by at least five years. Fortunately for the
defendants, in a decision issued one year after they filed their
notices of appeal, the Supreme Court held in a case with simi-
lar facts to this one that an appellate court cannot raise a
defendant’s sentence if the government has not appealed,
even to raise the sentence to the statutorily required minimum.
See Greenlaw v. United States, 128 S. Ct. 2559, 2562 (2008).
Here, the government has for some reason — we would like
to think out of a sense of justice or mercy — exercised its dis-
cretion not to seek on appeal the additional years of incarcera-
tion for which the statute provides. This decision alone has
saved one of the Beltrans, Abraham, from a higher sentence,
despite his counsel’s efforts to the contrary.
[3] The other appeal, Jose’s, is more brazen, and accord-
ingly holds more potential for self-immolation. Jose does not
simply challenge the computation of the mandatory minimum
sentence under § 924(c), but also challenges the district
court’s exercise of its discretion in imposing a thirty-five year
sentence instead of the recommended term of life in prison.
Jose believes the thirty-five year sentence is unreasonably
high as well as procedurally invalid and asks us to vacate it
UNITED STATES v. BELTRAN-MORENO 1593
and remand for resentencing. Although the Supreme Court
has observed that, were we to remand the matter, the district
court would not be permitted to raise Jose’s mandatory mini-
mum sentence sua sponte following the government’s failure
to appeal, see Greenlaw, 128 S.Ct. at 2570 n.8, it is hard to
imagine that were we to vacate the sentence and instruct the
district court to start its reasonableness analysis anew, as Jose
asks, it would ignore the fact that its original sentence was
statutorily impermissible. In other words, were Jose to prevail
on his challenge to the substantive and procedural validity of
his sentence, we cannot imagine that he would receive a more
favorable sentence, although he might very well receive a
higher one. Compare id., with id. at 2576 n.2 (Alito, J., dis-
senting) (discussing Booker remands resulting in higher sen-
tences).
[4] The odd posture of Jose’s appeal brings to mind Oscar
Wilde’s oft-noted adage: “When the gods wish to punish us,
they answer our prayers.” Judges, however, are not gods, and,
fortunately for Jose, there is no basis in the law to grant his
prayer for “relief.” The district court’s sentence was procedur-
ally sound under § 3553(c), as it adequately explained the
rationale for its discretionary decision to depart downward
from the recommended life sentence. Nor could the sentence
possibly be unreasonably high as a substantive matter, as it
was lower than legally permitted. Cf. United States v. Valente,
961 F.2d 133, 134 (9th Cir. 1992) (“[D]istrict courts do not
have discretion to depart downward from mandatory mini-
mum sentences imposed by statute.”). Thus, Jose’s appeal
fails on both grounds, thereby sparing him from the adverse
consequences he likely would have suffered had he suc-
ceeded.
* * *
We hope that this case will serve as a strong warning for
the defendants’ appellate counsel. Only by the unanticipated
fortuity of Greenlaw, combined in Jose’s case with a failure
1594 UNITED STATES v. BELTRAN-MORENO
to present persuasive arguments on the merits, have counsel
avoided a disposition that would have raised their clients’
terms of incarceration by at least five years and, at least in
Jose’s case, likely far more. Moreover, at the time the Bel-
trans filed their appeal they did not know whether the govern-
ment would file a cross-appeal, cf. Fed. R. App. P.
4(b)(1)(B)(ii); if it had, its success would have been inevitable
and the imposition of higher sentences unavoidable.
[5] “The right to counsel plays a crucial role in the adver-
sarial system embodied in the Sixth Amendment, since access
to counsel’s skill and knowledge is necessary to accord defen-
dants the ‘ample opportunity to meet the case of the prosecu-
tion’ to which they are entitled.” Strickland v. Washington,
466 U.S. 668, 685 (1984) (emphasis added) (quoting Adams
v. United States ex rel. McCann, 317 U.S. 269, 275-76
(1942)). We remind counsel that the professional norms that
establish the constitutional baseline for their effective perfor-
mance indisputably include the duty to research the relevant
case law and to advise a client properly on the consequences
of an appeal. While it is ultimately the client’s right to pursue
an appeal, we seriously question the quality of counsel’s
advice when an appeal with essentially zero potential benefit
and a significant opportunity for harm is pursued in such a
manner as this one has been. We also remind counsel of their
ethical obligations not to present arguments to this court that
are legally frivolous. Fortunately, in this instance, counsel did
no serious harm to their clients, and have escaped this appeal
without the imposition of sanctions. However, in the future,
we caution counsel to be more diligent, for their own sakes
and, more important, for their clients’.
The sentences are AFFIRMED.