                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 10, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 07-4190
 v.                                            (D.C. No. 2:06-CR-666-DAK)
                                                         (D. Utah)
 WILLIAM MARTINEZ,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before O’BRIEN, McKAY, and GORSUCH, Circuit Judges.


      William Martinez pled guilty to one count of possession with intent to

distribute 50 grams or more of pure or actual methamphetamine. The district

court sentenced him to 120 months imprisonment, followed by five years of

supervised release. On appeal, Mr. Martinez’s counsel filed an Anders brief and

moved to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967).

Mr. Martinez subsequently filed pro se a response contending that he did not


      *
         After examining appellant’s brief and the 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) and 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order and judgment is not binding precedent except under the doctrines of law of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.
knowingly and voluntarily plea guilty because the district court did not advise

him of the maximum sentence for his crime, that his sentence is unconstitutional

because the district court sentenced him based on an amount of drugs not alleged

in the indictment, and that he received ineffective assistance of counsel. The

government declined to file a brief. For the reasons set forth below, we discern

no meritorious issues for appeal, and we therefore grant the motion to withdraw

and dismiss this appeal.

                                      *   *     *

      In September 2006, Mr. Martinez delivered approximately one pound of

methamphetamine to his co-defendant, T. Amber Ward, for sale to a customer

who turned out to be an undercover police officer. It was later determined that

the drugs contained 185.8 grams of actual methamphetamine. Federal prosecutors

filed a one-count indictment, charging Mr. Martinez with possession with intent

to distribute 50 grams or more of actual methamphetamine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2. That charge carries a statutory

range of punishment of 10 years to life imprisonment.

      Represented by appointed counsel, Mr. Martinez pled guilty pursuant to a

plea agreement with the government. In his “Statement by Defendant in Advance

of Plea of Guilty,” Mr. Martinez admitted to delivering one pound of

methamphetamine to Ms. Ward and stated that he did not dispute the lab results

classifying the drugs as 185.8 grams of actual methamphetamine. Mr. Martinez

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also acknowledged in his statement that his crime carried a mandatory minimum

sentence of 10 years imprisonment. The statement further informed Mr. Martinez

of the rights he was relinquishing by pleading guilty and indicated that by signing

the document he was verifying that he understood his rights and entered the plea

agreement knowingly and voluntarily.

      Under the Guidelines, Mr. Martinez’s conviction, based on the 185.8 grams

of actual methamphetamine, carried a base offense level of 34. See U.S.S.G.

§ 2D1.1(c)(3). After a three-level reduction for acceptance of responsibility, the

final offense level suggested by the Guidelines was 31. Because of prior alcohol-

related driving infractions, Mr. Martinez was classified at criminal history

category level II. That total offense level and criminal history category produced

a proposed Guidelines sentencing range of 121 to 151 months imprisonment.

Neither party disputed this calculation or any other aspect of the presentence

report. At sentencing, Mr. Martinez requested that the district court sentence him

to the mandatory statutory minimum, 120 months. The district court did so, and

Mr. Martinez timely filed a notice of appeal.

                                      *   *     *

      Pursuant to the Supreme Court’s decision in Anders v. California, a court-

appointed defense counsel may “request permission to withdraw [from an appeal]

where counsel conscientiously examines a case and determines that any appeal




                                          -3-
would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th

Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel to

          submit a brief to the client and the appellate court indicating any
          potential appealable issues based on the record. The client may then
          choose to submit arguments to the court. The [c]ourt must then conduct
          a full examination of the record to determine whether defendant’s
          claims are wholly frivolous. If the court concludes after such an
          examination that the appeal is frivolous, it may grant counsel’s motion
          to withdraw and may dismiss the appeal.

Id. (citing Anders, 386 U.S. at 744).

      In his Anders brief, counsel for Mr. Martinez represented that he could find

no basis in law or fact for any argument on direct appeal. Mr. Martinez’s

response argues that (1) his guilty plea was not knowing and voluntary because

the district court did not advise him of the maximum sentence for his crime; (2)

his sentence based on 185.8 grams of methamphetamine is unconstitutional

because the indictment did not specify the drug amount; and (3) he received

ineffective assistance of counsel. 1 After conducting a full examination of the

record, we agree with counsel that there is no basis in law or fact for any of these

arguments.

      1. A valid guilty plea must be knowingly, intelligently, and voluntarily

made. See United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998); see also

Fed. R. Crim. P. 11. Before accepting a guilty plea, the district court must


      1
        As a pro se filing, we give solicitous consideration to Mr. Martinez’s
response. See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).

                                          -4-
address the defendant in open court and inform the defendant of his or her rights,

the nature of the offense, and the possible penalties. Fed. R. Crim. P. 11(b). Mr.

Martinez argues that his plea is invalid because, during this colloquy, the district

court did not inform him of the maximum penalty he faced and therefore did not

comply with Rule 11(b)(1)(H). To the contrary, the transcript of Mr. Martinez’s

change of plea hearing plainly reflects that the district court advised Mr. Martinez

that the maximum possible sentence was life imprisonment, and Mr. Martinez

responded that he understood. Change of Plea Hr’g Tr. at 7.

      We further find no other evidence to indicate that Mr. Martinez’s guilty

plea and plea agreement were not voluntary, knowing, and intelligent. The record

indicates that the district court fulfilled the requirements set out in Rule 11 and

those announced in Gigot to ensure the validity of the plea. See Change of Plea

Hr’g Tr. (indicating that the district court judge verified a factual basis for the

plea, questioned the defendant and confirmed that he fully understood the charges

against him and the consequences of the plea, explained the terms and conditions

of the proposed plea agreement, and otherwise ensured that the plea was freely,

voluntarily, and intelligently made). Mr. Martinez has failed to put forward any

evidence or colorable argument that would place the validity of the plea or plea

agreement in doubt, and so any appeal on these grounds would be meritless.

      2. Mr. Martinez argues that the district court violated United States v.

Booker, 543 U.S. 220 (2005), by relying on facts not alleged in the indictment to

                                          -5-
which he pled guilty to enhance his sentence. The indictment charged Mr.

Martinez with possessing with intent to distribute 50 grams or more of actual

methamphetamine, whereas the district court’s Guidelines calculation was based

on 185.8 grams of actual methamphetamine. This argument fails for at least three

reasons.

        First, Mr. Martinez admitted in his plea agreement that he delivered

approximately one pound of methamphetamine to Ms. Ward, of which 185.8

grams were actual methamphetamine. See Statement by Defendant in Advance of

Plea of Guilty at 5. Thus, in using the 185.8 grams to calculate the applicable

Guidelines range, the district court did not find additional facts outside the guilty

plea.

        Second, the district court did not use the 185.8 grams to increase Mr.

Martinez’s sentence. The court sentenced Mr. Martinez to the mandatory

statutory minimum sentence of 120 months, not to a sentence within his advisory

Guidelines range of 121-151 months, which was calculated based on the 185.8

grams. He therefore received the lowest possible sentence available under the

statute listed in the indictment, which specified only 50 grams or more of actual

methamphetamine, rendering any use of the 185.8 grams in the Guidelines range

calculation harmless because it did not affect his ultimate sentence.

        Finally, even assuming counterfactually that Mr. Martinez had not admitted

to possessing 185.8 grams and the district court had used that amount to increase

                                          -6-
his sentence, our precedent makes clear that judicial fact-finding by the

preponderance of the evidence is unconstitutional only when used to increase a

defendant’s sentence by applying the Guidelines in a mandatory fashion. See

United States v. Bustamante, 454 F.3d 1200, 1202 (10th Cir. 2006). Here, not

only did the district court not use the 185.8 grams to increase Mr. Martinez’s

sentence, but the district court also understood the advisory nature of the

Guidelines and, in fact, did not apply the Guidelines in a mandatory fashion, as

evidenced by Mr. Martinez’s below-Guidelines sentence. See Change of Plea

Hr’g Tr. at 8 (stating that the court will utilize the Guidelines “in an advisory

way”).

       3. As for the possibility of appeal based on ineffective assistance of

counsel, we note that, even if Mr. Martinez had a valid claim on these grounds,

such a claim is generally most properly pursued in collateral proceedings rather

than on direct appeal so that the defendant can proceed with a record developed

for that purpose. See United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir.

2006) (“The vast majority of ineffective assistance of counsel claims should be

brought in collateral proceedings rather than on direct appeal from a

conviction.”); see also United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.

1995) (en banc). Mr. Martinez offers us no reason to depart from this general

rule in his case.

                                       *   *     *

                                           -7-
      For the foregoing reasons, we grant counsel’s motion to withdraw and

dismiss the appeal.


                                     ENTERED FOR THE COURT



                                     Neil M. Gorsuch
                                     Circuit Judge




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