FILED
United States Court of Appeals
Tenth Circuit
January 18, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 11-4045
v. (D.C. No. 2:10-CR-00802-DB-1)
(D. Utah)
CRISTINO SOTO-TULA,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Defendant Cristino Soto-Tula pleaded guilty to one count of possession
with intent to distribute 50 grams or more of a mixture or substance containing
methamphetamine. See 21 U.S.C. § 841(a)(1). The United States District Court
for the District of Utah sentenced him to 108 months’ imprisonment, followed by
five years of supervised release. Defendant timely appealed.
*
After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent except under the doctrines of law of the case, res judicata,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.
Defense counsel, finding no meritorious issue for appeal, has submitted an
Anders brief. See Anders v. California, 386 U.S. 738 (1967). Counsel provided
Defendant with a copy of the brief and the clerk of this court informed Defendant
that he had 30 days to respond and raise any arguments neglected by counsel. See
id. at 744 (defendant must be given a copy of the Anders brief and provided time
to respond). Defendant has not filed a response with this court. We have
jurisdiction under 28 U.S.C. § 1291. After conducting an independent
examination of the record, we agree with counsel’s conclusion that no
nonfrivolous basis for appeal exists. We dismiss the appeal.
I. DISCUSSION
We first observe that nothing in the record suggests that Defendant has any
meritorious ground for challenging his guilty plea. The plea agreement signed by
Defendant advised him of his rights, the charges against him, and the potential
penalty. In it he admitted the facts constituting his offense and stated that he
entered into it “after full and careful thought; with the advice of counsel; and with
a full understanding of my rights, the facts and circumstances of the case and the
consequences of the plea.” App. to Aplt.’s Opening Br. at 7. In accepting the
plea the district court verified the factual basis for the plea, informed Defendant
of the maximum possible penalty, and otherwise ensured that the plea was entered
knowingly and voluntarily.
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Also, the district court correctly calculated the guidelines sentencing range.
Defendant’s base offense level of 34 was appropriate for possession of 431 grams
of actual methamphetamine, the amount he admitted. See USSG § 2D1.1(a)(5),
(c)(3). That level was increased by two levels for possession of a dangerous
weapon, see id. § 2D1.1(b)(1), decreased by two levels under the safety-valve
provision, see id. § 2D1.1(b)(16), and decreased by another three levels for
acceptance of responsibility, see id. § 3E1.1, resulting in a total offense level of
31. Given Defendant’s category I criminal history, his advisory guideline range
was 108 to 135 months’ imprisonment, and the court sentenced him to 108
months. Because we see no error harmful to Defendant in the court’s calculation
of the applicable guidelines range and because the court imposed a sentence at the
very low end of that range, Defendant has no nonfrivolous ground for challenging
the reasonableness of his sentence. See United States v. Kristl, 437 F.3d 1050,
1054 (10th Cir. 2006) (per curiam) (properly calculated sentence within the
guidelines range is accorded presumption of reasonableness).
Finally, Defendant may have a claim of ineffective assistance of counsel;
but absent exceptional circumstances not present here, we will not address such a
claim on direct appeal. See United States v. Calderon, 428 F.3d 928, 931 (10th
Cir. 2005).
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II. CONCLUSION
We DISMISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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