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  • United States v. Mendoza-Verduzco, 10th Cir. (2005)

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    The defendant was indicted and pled guilty to conspiracy to distribute over 500 grams of methamphetamine. In his plea agreement, he stipulated that his relevant conduct involved 1.5-5 kilograms, triggering a 10-year mandatory minimum sentence. At sentencing, the court imposed the 120-month statutory minimum at the government's request. On appeal, the defendant's counsel filed an Anders brief stating the appeal was frivolous. The court affirmed the sentence, finding the defendant's arguments regarding his criminal history calculation, eligibility for safety valve departure, cruel and unusual punishment claim, and ineffective assistance of counsel claim to be without merit. The court also found that United States v. Booker did not apply because the

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    Filed: 2005-06-21 Precedential Status: Non-Precedential Docket: 04-8114

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    The defendant was indicted and pled guilty to conspiracy to distribute over 500 grams of methamphetamine. In his plea agreement, he stipulated that his relevant conduct involved 1.5-5 kilograms, triggering a 10-year mandatory minimum sentence. At sentencing, the court imposed the 120-month statutory minimum at the government's request. On appeal, the defendant's counsel filed an Anders brief stating the appeal was frivolous. The court affirmed the sentence, finding the defendant's arguments regarding his criminal history calculation, eligibility for safety valve departure, cruel and unusual punishment claim, and ineffective assistance of counsel claim to be without merit. The court also found that United States v. Booker did not apply because the

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    32 views6 pages

    United States v. Mendoza-Verduzco, 10th Cir. (2005)

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    Scribd Government Docs
    The defendant was indicted and pled guilty to conspiracy to distribute over 500 grams of methamphetamine. In his plea agreement, he stipulated that his relevant conduct involved 1.5-5 kilograms, triggering a 10-year mandatory minimum sentence. At sentencing, the court imposed the 120-month statutory minimum at the government's request. On appeal, the defendant's counsel filed an Anders brief stating the appeal was frivolous. The court affirmed the sentence, finding the defendant's arguments regarding his criminal history calculation, eligibility for safety valve departure, cruel and unusual punishment claim, and ineffective assistance of counsel claim to be without merit. The court also found that United States v. Booker did not apply because the

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    of 6

    F I L E D

    UNITED STATES COURT OF APPEALS

    United States Court of Appeals


    Tenth Circuit

    TENTH CIRCUIT

    June 21, 2005

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.

    No. 04-8114
    (D.C. No. 03-CR-165-D)

    CARLOS MENDOZA-VERDUZCO
    aka Miguel Mendoza Barajas aka
    Carlios,

    (D. Wyoming)

    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
    Defendant Carlos Mendoza-Verduzco was indicted, along with several
    other individuals, on a single count of conspiring to possess with intent to
    distribute and distribution of more than 500 grams of methamphetamine, in

    After examining the briefs 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. The court generally disfavors the citation of orders and
    judgments; nevertheless, an order and judgment may be cited under the terms and
    conditions of 10th Cir. R. 36.3.
    *

    violation of 21 U.S.C. 841(a)(1) and (b)(1)(A). He entered a guilty plea after


    negotiating a plea agreement. The agreement included the following statement:
    RELEVANT CONDUCT:
    8.
    Defendant has been advised of 1B1.3 of the
    Sentencing Guidelines regarding use of relevant conduct in
    establishing sentence and has read the advisement regarding
    supervised release as stated in this Plea Agreement. The
    United States and the Defendant hereby stipulate and agree that the
    Defendants relevant conduct in this conspiracy involved at least 1.5
    kilograms but no more than 5 kilograms of methamphetamine.
    R. Vol. I Doc. 252 at 5. The stipulated amount of methamphetamine requires a
    10-year mandatory minimum sentence. 21 U.S.C. 841(b)(1)(A)(viii).
    At the hearing on Defendants guilty plea the court engaged in the
    following colloquy regarding the stipulated amount:
    THE COURT: The quantity of drugs that youre stipulating
    to, again, is sufficient to establish the ten-year mandatory minimum?
    [Government Counsel]: Yes, sir.
    THE COURT: Are you satisfied, counsel, as to the quantity of
    drugs involved in this matter?
    [Defense Counsel]: Yes.
    THE COURT: And what is your estimate of that drug
    quantity?
    [Defense Counsel]: Somewhere in the neighborhood of
    between 1 to 5 kilograms.
    THE COURT: Do you agree with that, Mr. Mendoza?
    -2-

    THE DEFENDANT: Yes.


    R. Vol. II at 33. The presentence report (PSR) agreed with the stipulated amount
    and, based on two prior firearms convictions, awarded Defendant three criminal
    history points, placing him in criminal history category II. Defendants final base
    offense level of 31his total offense level of 34, see United States Sentencing
    Guidelines (USSG) 2D1.1 (c)(3), minus three levels for acceptance of
    responsibility, see USSG 3E1.1 (a)-(b)and his criminal history category
    yielded a guidelines sentencing range of 121-151 months. Defendant raised no
    objection to the PSR.
    At the September 30, 2004, sentencing hearing, the government moved the
    court to sentence Defendant to the 120-month statutory minimum because it was
    only one month less than the guidelines minimum and the minimum sentence
    would eliminate any prospective issue with respect to Blakely [v. Washington,
    124 S. Ct. 2531 (2004)]. R. Vol. III at 5-6. The court granted the motion
    because it was a small departure, did not go below the mandatory minimum, and
    eliminated potential Blakely issues. Defendants only objection was that
    application to him of 841(b)(1)(A)s mandatory minimum was unconstitutional
    because it amounted to cruel and unusual punishment in violation of the Eighth
    Amendment. The district court declined to declare the statute unconstitutional
    and sentenced Defendant to 120 months imprisonment.
    -3-

    On appeal, Defendants counsel filed an Anders brief, see Anders v.


    California, 386 U.S. 738 (1967). Appellate counsel who believes an appeal to be
    wholly frivolous, after a conscientious examination, may file a brief with the
    court requesting permission to withdraw, but must inform the court of anything
    in the record that might arguably support the appeal. Id. at 744. The defendant
    is then given a chance to raise any points that he chooses; and the court, after
    a full examination of all the proceedings, . . . decide[s] whether the case is wholly
    frivolous. Id. In compliance with Anders, counsel provided Defendant with a
    copy of his appellate brief and Defendant filed a pro se reply and a motion for
    appointment of new counsel.
    The Anders brief and Defendants reply raise the following arguments: (1)
    the district court erred in imposing the 10-year mandatory minimum; (2)
    Defendants criminal history was calculated incorrectly; (3) Defendant was
    entitled to a safety valve departure under 18 U.S.C. 3553(f); (4) the 120month sentence is cruel and unusual; (5) the sentence violated United States v.
    Booker, 125 S. Ct. 738 (2005); and (6) he was provided ineffective assistance of
    counsel.
    The first argument is frivolous because Defendant stipulated to facts
    requiring the district court to impose the 10-year mandatory minimum sentence.
    As for the second argument, Defendant objects to his criminal history calculation
    -4-

    on two grounds. First, he claims that his prior convictions for operating a motor
    vehicle without a license overrepresent his criminal history. But no criminal
    history points were awarded for any of those convictions. Second, he claims that
    an evidentiary hearing was necessary because the only evidence of the convictions
    was the PSRs statement of their existence. But he neither requested such a
    hearing nor objected at sentencing, so the PSRs assertions are deemed admitted.
    United States v. Shinault, 147 F.3d 1266, 1277, 1278 (10th Cir. 1998).
    Defendants third argument is also without merit. Safety valve
    departures are limited to defendants who have no more than one criminal history
    point and who proffered information to the government. 18 U.S.C. 3553(f)(1)
    and (5). Defendant meets neither requirement.
    Defendants cruel-and-unusual-punishment argument fails because the
    sentence is required by statute and not grossly disproportionate. See
    United States v. Youngpeter, 986 F.2d 349, 355 (10th Cir. 1993). And his
    ineffective-assistance-of-counsel claim cannot be raised on this appeal. See
    United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995)(en banc)
    (ineffective-assistance-of-counsel claims must be brought on collateral review,
    not direct appeal).
    Finally, Booker is irrelevant because Defendant was sentenced under
    841s mandatory minimum, not the Sentencing Guidelines. See United States v.
    -5-

    Williams, 403 F.3d 1188, 1202 (10th Cir. 2005) (Murphy, J, concurring and
    dissenting) (noting that mandatory minimums are unaffected by Booker);
    United States v. Childs, 403 F.3d 970, 972 (8th Cir. 2005) (noting Booker is
    wholly inapposite when reviewing mandatory minimum sentences).
    For the foregoing reasons, Defendants sentence is AFFIRMED.
    Furthermore, we have conducted our own review of the record and agree that the
    appeal in this case is wholly frivolous and GRANT counsels Anders motion to
    withdraw. Defendants motion for appointment of new counsel is DENIED.
    ENTERED FOR THE COURT
    Harris L Hartz
    Circuit Judge

    -6-

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