                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS March 26, 2009

                                   TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                     Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 08-2178
 REUBEN MENDEZ-ZAVALA,                         (D.C. No. 1:07-CR-02132-WJ-2)
                                                          (D.N.M.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before McCONNELL, HOLLOWAY and BALDOCK, Circuit Judges. **


      Defendant Reuben Mendez-Zavala pled guilty to conspiring to possess with

intent to distribute more than 100 grams of heroin, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(B), and 846. He now appeals his sentence, arguing the

district court erred by enhancing his sentence with a two-level role-in-the-offense

adjustment under U.S. Sentencing Guidelines (U.S.S.G.) § 3B1.1.             We have

jurisdiction under 28 U.S.C. § 1291. Finding no merit to Defendant’s claim, we

      *
         This order and judgment is not binding precedent except under the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.
      **
         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.
affirm.

                                        I.

      On March 20, 2008, Defendant pled guilty to an information charging

Defendant with conspiring to possess with intent to distribute more than 100 grams

of heroin.   The plea agreement stipulated that Defendant was responsible for

distributing 835 net grams of heroin. Under U.S.S.G. § 2D1.1, the Presentence

Report (PSR) set Defendant’s base offense level at 30. This number was calculated

based on the charges against Defendant and the amount of heroin attributed to his

conduct. The PSR then increased Defendant’s Guidelines offense level to 32, under

U.S.S.G. § 2D1.1(b)(1), for possessing a firearm while purchasing heroin from an

undercover officer on August 28, 2007. The PSR then reduced Defendant’s total

offense level by three, under U.S.S.G. § 3E1.1, because Defendant accepted

responsibility for his criminal conduct. Thus, the PSR recommended a total offense

level of 29, which resulted in an advisory Guidelines range of 87 to 108 months

imprisonment.

      Defendant’s sentencing hearing was held on July 28, 2008. The only disputed

issue at sentencing was whether a sufficient factual basis existed for applying the

two-level upward adjustment for Defendant’s possession of a firearm during the

undercover heroin buy. Defendant contended the upward adjustment should not be

applied and, therefore, his total offense level should only be 27. Because the sole

basis for this upward adjustment was a hearsay police report filed by the undercover

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officer present at the August 28, 2008 heroin buy, the district court was initially

inclined to grant Defendant’s objection to the two-level enhancement.           The

Government, however, brought the undercover officer into court to testify regarding

the August 28 heroin purchase, which occurred in a hotel parking lot while

Defendant was seated in his vehicle. The officer testified that he witnessed a black

Glock pistol under Defendant’s leg during the exchange.

      Finding the undercover officer’s testimony credible, the district court

concluded that the PSR correctly applied a two-level upward adjustment for

Defendant’s possession of a firearm. Thus, the district court agreed with the PSR’s

final determination of a total offense level of 29 and an advisory Guidelines range

of 87-108 months. Subsequently, the district court sentenced Defendant to 96

months imprisonment.

                                            II.

      On appeal, Defendant takes issue with an isolated statement made by the

district court during the sentencing of Defendant’s co-defendant, Alejandro Beltran.

While discussing a two-level enhancement recommended by the Government for

Beltran (based upon Beltran’s supervisory role in the drug conspiracy), the district

court stated:

                Now, with respect to the role adjustment sought by the
                government, that is under Section 3B1.1; and I’ll also note,
                because Mr. Mendez Zavala – I did apply the two-level
                enhancement to Mr. Mendez-Zavala. In terms of a role
                adjustment with respect to Mr. Mendez-Zavala, the

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              government did not seek one. I suppose it could have been
              sought. Certainly the two-level could have. It wasn’t, so
              it wasn’t applied.

R., Vol. III at 245. Defendant contends that this ambiguous statement—in which the

district court suggests it applied a two-level role-in-the-offense adjustment and then

states that it did not apply a two-level role-in-the-offense adjustment—requires this

Court to remand for resentencing. Specifically, Defendant alleges the district court

failed to give him notice of, and an opportunity to argue against, the imposition of

a sentencing enhancement for playing a leading role in the drug conspiracy.

                                         A.

      Before addressing Defendant’s argument that he is entitled to notice before

receiving a sentencing enhancement, we must first determine whether the district

court actually applied an upward adjustment for Defendant’s role in the conspiracy.

We refer to the entire record to make this determination. See United States v.

Earley, 816 F.2d 1428, 1431 (10th Cir. 1987) (noting that “most sentencing

ambiguities can be resolved by reviewing the record”); see also United States v.

Taylor, 414 F.3d 528, 534 (4th Cir. 2005) (recognizing that the intent of the

sentencing judge is determined by reference to the entire record); United States v.

Bull, 214 F.3d 1275, 1279 (11th Cir. 2000) (same).       For the reasons articulated

below, we believe that no fair reading of the record would allow us to conclude that

the district court applied an upward adjustment for Defendant’s role in the

conspiracy.

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      First, nowhere in Defendant’s sentencing transcript—as opposed to the

ambiguous statement made during co-defendant Beltran’s sentencing hearing—can

we find evidence that the district court applied a two-level upward adjustment for

Defendant’s role in the conspiracy.        Neither the PSR nor the Government

recommended such an adjustment, and the district court did not indicate it would

apply one. To the contrary, the district court was very clear that Defendant received

(1) a base offense level of 30, (2) a two-level increase due to the firearm possession,

and (3) a three-level reduction for acceptance of responsibility, which left Defendant

with a total offense level of 29. If Defendant had received a two-level upward

adjustment for his role in the conspiracy, his total offense level would have been 31,

not 29.

      Second, the record reflects the district court’s exhaustive and thorough

attention to detail in sentencing Defendant and his co-defendants. Prior to applying

the two-level upward adjustment for Defendant’s possession of a firearm, the district

court delayed the sentencing hearing and required the Government to bring the

undercover officer into court to testify that he witnessed Defendant’s firearm

possession during the undercover heroin buy. Similarly, in co-defendant Beltran’s

sentencing hearing, the district court conducted lengthy proceedings, which included

testimony from undercover officers, to establish that the two-level role-in-the-

offense adjustment for Beltran was actually warranted. Thus, Defendant would have

us believe the district court would covertly apply a two-level upward adjustment for

                                          5
Defendant’s role in the conspiracy without conducting any proceedings on the

matter—despite its exercise of care and diligence to insure the other enhancements

were properly applied.     The district court’s exacting and meticulous conduct

exhibited throughout the record belies such a conclusion.

      Finally, the express words of the district court contradict Defendant’s

assertion. First, in the comments at issue on appeal, the district court stated: “In

terms of a role adjustment with respect to Mr. Mendez-Zavala, the government did

not seek one. I suppose it could have been sought. Certainly the two-level could

have. It wasn’t, so it wasn’t applied.” R., Vol. III at 245. The district court

reiterated this acknowledgment at the end of co-defendant Beltran’s sentencing

hearing when it explained why Beltran received a longer sentence than Defendant:

“[T]he reason [Beltran’s] guideline sentence is higher than Mr. Mendez-Zavala’s is

that there was a higher quantity of heroin attributed to [Beltran], and [Beltran]

received an aggravating role adjustment based on the evidence that established that

he met the criteria of Section 3B1.1(b) of the sentencing guidelines.” Id. at 250

(emphasis added). This statement demonstrates the district court applied the role-in-

the-offense adjustment to Beltran but not to Defendant.

                                         B.

      Because the record is clear that Defendant did not receive an upward

adjustment for his role in the conspiracy, we need not address whether Defendant

was entitled to notice before the application of a sentencing enhancement. We do,

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however, take this moment to stress that counsel has a duty of candor to the court.

See Echo Acceptance Corp. v. Household Retail Servs., Inc., 267 F.3d 1068, 1093

n.13 (10th Cir. 2001). Factual contentions made on appeal should be supported in

the record. See 10th Cir. R. 46.5(B)(3). As previously noted, no fair reading of this

record would allow us to conclude the district court applied a two-level enhancement

for Defendant’s role in the conspiracy. Defendant’s entire appeal is based upon one

isolated statement taken out of context. We recognize the great importance of a

defendant’s right to challenge possible sentencing errors, but Defendant’s argument

here borders on the frivolous. Appeals before this Court should be reserved for

matters of potential merit. Accordingly, we reject Defendant’s claim of error.

      AFFIRMED.

                                       Entered for the Court,



                                       Bobby R. Baldock
                                       United States Circuit Judge




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