United States v. Gutierrez
| Decision Date | 19 December 2012 |
| Docket Number | No. 12-3168,12-3168 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JUAN CARLOS GUTIERREZ, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
D. Kansas
ORDER AND JUDGMENT*Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
After examining the briefs and 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). The case is therefore ordered submitted without oral argument.
Defendant and appellant, Juan Carlos Gutierrez, seeks to appeal his conviction and sentence following his plea of guilty to one count of conspiracy todistribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. His appointed counsel, Stephen W. Kessler, has filed an Anders brief and has moved to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967). Mr. Gutierrez has filed a pro se brief in response to counsel's brief, and the government has declined to file a brief. We therefore base our conclusion on counsel's brief, Mr. Gutierrez's brief, as well as our own careful review of the record. For the reasons set forth below, we agree with Mr. Kessler that the record in this case provides no nonfrivolous basis for an appeal, and we therefore grant his motion to withdraw and dismiss this appeal.
Following his arrest, Mr. Gutierrez filed a motion to suppress statements he had made during questioning. He claimed that he had asked to speak with an attorney prior to being interviewed, and that he asked again during the interview, but his requests were denied. A recording of the interview, which was admitted into evidence, did not reveal any such requests from Mr. Gutierrez. Mr. Gutierrez claimed that his requests had been made while the tape recorder was, for some reason, turned off. The district court denied the motion to suppress, concluding that Mr. Gutierrez's statements were not made involuntarily nor were they obtained in violation of his constitutional rights.
Mr. Gutierrez subsequently pled guilty, pursuant to a written plea agreement, to one count of conspiracy to distribute drugs (primarily methamphetamine). He was sentenced to ninety-eight months' imprisonment, followed by five years of supervised release. In the Plea Agreement, the government agreed, inter alia, to "not object to reductions for 'safety valve' if the defendant qualifies for each component of the reductions." Plea Agmt. at 3, R. Vol. 1 at 99. Mr. Gutierrez agreed to waive any right to "appeal or collaterally attack any matter in connection with this prosecution, [his] conviction, or the components of the sentence." Plea Agmt. at 8. Further, Mr. Gutierrez waived "the right to appeal the sentence imposed in this case except to the extent, if any, the Court departs upwards from the applicable sentencing guideline range determined by the Court." Id.
In preparation for sentencing under the advisory United States Sentencing Commission, Guidelines Manual ("USSG"), the United States Probation Department prepared a presentence report ("PSR"). The PSR assessed a total offense level of 31, after a reduction for acceptance of responsibility. With no criminal history, Mr. Gutierrez was assessed an initial advisory Guideline range of 108 to 135 months. Because there was an applicable statutory mandatory minimum of ten years, Mr. Gutierrez's Guidelines range sentence was ultimately calculated to be 120 to 135 months.
Mr. Gutierrez filed objections to the PSR. He alleged error in the PSR's failure to apply the safety-valve provisions to permit a reduction of his sentence below the statutory minimum. 18 U.S.C. § 3553(f); USSG § 5C1.2. He also objected to the denial of an adjustment for his role in the offense, which he claims was minor. The probation officer disagreed with Mr. Gutierrez's position on both issues.
At the sentencing hearing, Mr. Gutierrez again objected to the failure to award him a reduction in his sentence for being a minor participant and for failing to find him eligible for safety-valve relief. The government responded that he was not entitled to application of the safety-valve because he had not given truthful testimony during the hearing on his motion to suppress the statements he had made. Specifically, the government argued that Mr. Gutierrez had made untruthful statements regarding a recorded interview which occurred after he was arrested.
At the conclusion of the sentencing hearing, the district court found that Mr. Gutierrez "barely" met the criteria for application of the safety-valve provision and was therefore eligible for a sentence below the ten-year statutory minimum. The court then calculated his advisory Guidelines range as 87 to 108 months and sentenced him to ninety-eight months. The court denied any reduction for being a minor participant, stating, Tr. of Sentencing Hr'g, R. Vol. 3 at 232.
Mr. Gutierrez filed a pro se notice of appeal. As indicated, his appointed counsel has moved to withdraw as counsel pursuant to Anders. Mr. Gutierrez then filed a long pro se brief responding to his counsel's motion to withdraw and asserting a number of arguments for appeal.
In Anders, the Supreme Court held that if a defendant's counsel "finds [the defendant's] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." Anders, 386 U.S. at 744. Counsel must submit to both the court and his client a "brief referring to anything in the record that might arguably support the appeal." Id. The defendant may then "raise any points that he chooses." Id.
The reviewing court must examine all the proceedings to determine whether the appeal is frivolous. Id. If the court so finds, it may grant defense counsel's request to withdraw and dismiss the appeal. Id. "On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) [the reviewing court] must, prior to decision, afford the indigent [defendant] the assistance of counsel to argue the appeal." Id.
Mr. Gutierrez's counsel suggests the only possible claims he could raise on appeal relate to the denial of Mr. Gutierrez's motion to suppress and whether the government breached the Plea Agreement.1
"In reviewing the denial of a motion to suppress, we accept the district court's factual findings unless clearly erroneous and we view the evidence in the light most favorable to those findings." United States v. Guardado, 699 F.3d 1220, 1222 (10th Cir. 2012). "Judging the credibility of the witnesses, determining the weight to be given to evidence, and drawing reasonable inferences and conclusions from the evidence are within the province of the district court." United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998).
Following his arrest, Mr. Gutierrez was questioned by police officers and admitted his involvement in the methamphetamine conspiracy. He then moved tosuppress that statement, arguing that he had requested counsel after he was informed of his right to an attorney. The interview was recorded, but the recording revealed no such request by Mr. Gutierrez for an attorney. Mr. Gutierrez testified at the hearing on the motion to suppress that his requests must have been made when the recorder was turned off. The district court specifically found that his testimony was not credible:
During the hearing [on the motion to suppress], Gutierrez testified that he . . . requested an attorney, but was denied. The Court does not find this testimony credible. First, the taped recording of the interview does not reveal that such a request was made. Second, Gutierrez's claim that he asked for an attorney while the recorder was off is too incredible to be believed.
Mem. & Order at 17 n.41, R. Vol. 1 at 81. The district court accordingly did not err in denying Mr. Gutierrez's motion to suppress the statements made during the interview.
We agree with defense counsel that there is no nonfrivolous ground for attacking the court's decision.
In the Plea Agreement, the government agreed not to make an objection to the application of the safety-valve provision to Mr. Gutierrez's sentence. Yet, at sentencing, the government made such an objection. Thus, defense counsel suggests that there was an arguable breach of the Plea Agreement.
"Where the Government obtains a guilty plea which is predicated in any significant degree on a promise or agreement with the U.S. Attorney, such promise or agreement must be fulfilled to maintain the integrity of the plea." United States v. Bullcoming, 579 F.3d 1200, 1205 (10th Cir. 2009) (). Because Mr. Gutierrez failed to argue in the district court that the government had breached the Plea Agreement, we review the alleged breach for plain error. Id. Mr. Gutierrez cannot prevail "unless he establishes that the district court committed error, the error was plain, and the error affected his substantial rights." Id. (quoting United States v. Dryden, 563 F.3d 1168, 1170 (10th Cir. 2009)). "Even then we possess discretion with respect to granting relief, depending on our assessment of whether the error seriously affected the fairness, integrity, or public reputation of judicial proceedings." Id.
The government agreed, in the Plea Agreement, "to not object to reductions for 'safety valve' if the defendant qualifies for each component of the reductions." Plea Agreement at ¶ 5(c), R. Vol. 1 at 99 (emphasis added). The safety-valve provision allows the district court to issue a sentence below the guideline...
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