                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 21, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-8061
          v.                                            (D. Wyoming)
 PABLO CORRALES-CARDENAS,                           (D.C. No. 07-CR-07-D)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and McCONNELL, 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 Pablo Corrales-Cardenas pled guilty, pursuant to a

plea agreement, to one count of conspiracy to possess with intent to distribute and

to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1)


      *
        This order and judgment is not binding precedent except under the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.
and (b)(1)(A)(viii), and two counts of distribution of methamphetamine, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). He was sentenced to sixty four

months’ imprisonment, followed by five years of supervised release, along with

deportation to occur upon release, a $300 fine, and a $200 special assessment.

Corrales-Cardenas appeals his sentence.

      Corrales-Cardenas’ appointed counsel, Federal Public Defender

Raymond P. Moore, has filed an Anders brief and moved to withdraw as counsel.

See Anders v. California, 386 U.S. 738 (1967). Corrales-Cardenas has not filed a

response, and the government has declined to file a brief. We therefore base our

conclusion on counsel’s brief and on our own review of the record. For the

reasons set forth below, we agree with Mr. Moore that the record in this case

provides no non-frivolous basis for an appeal, and we therefore grant his motion

to withdraw and dismiss this appeal.



                                BACKGROUND

      Prior to the arrival of Corrales-Cardenas, a citizen of Mexico, in

Sweetwater County, Wyoming, in December 2006, the Wyoming Division of

Criminal Investigation, Southwest Enforcement Team (“DCI”) had initiated an

investigation through a confidential informant (“CI”) against Lorenzo Alatorre-

Guevara, one of Corrales-Cardenas’ co-defendants. By the time Corrales-

Cardenas arrived in Wyoming, DCI had already conducted two controlled buys of

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methamphetamine with Corrales-Cardenas’ co-defendants and had gathered

information about a conspiracy involving those individuals.

      On January 2, 2007, the CI performed a controlled buy of one ounce of

methamphetamine from Alatorre-Guevara and Corrales-Cardenas. On January 4,

the CI performed a controlled buy of two ounces of methamphetamine from

Corrales-Cardenas and another co-defendant, Manuela Villa-Espitia. On that

same day, DCI executed a search warrant on Alatorre-Guevara’s residence and

vehicles, seizing approximately four pounds of methamphetamine.

      On May 2, 2007, Corrales-Cardenas and the government entered into a plea

agreement. The plea agreement included a stipulation that Corrales-Cardenas’

relevant conduct included at least 500 grams of methamphetamine and asserted

that the government would present evidence to prove that his conduct involved

distribution of more than 500 grams. Corrales-Cardenas agreed to plead guilty to

the three counts, in exchange for the government’s agreement: (1) that he was

entitled to a full three-level reduction in his offense level for acceptance of

responsibility, pursuant to United Sentencing Commission, Guidelines Manual

(“USSG”) §3E1.1(a) and (b); (2) to move for a downward departure pursuant to

USSG §5K1.1 if Corrales-Cardenas cooperated with the government in the

prosecution of others; and (3) to dismiss one of the two distribution counts at

sentencing.




                                          -3-
      At his change-of-plea hearing, the essential terms of the plea agreement

were reviewed. Corrales-Cardenas stated that, with the help of an interpreter, he

understood the plea agreement, and he had read it and discussed it with his

counsel. He confirmed that he had signed it freely and voluntarily. The district

court, as well as both counsel, reviewed the applicable statutory penalties and the

anticipated application of the Guidelines. The court further confirmed that

Corrales-Cardenas had thoroughly discussed the charges against him with

counsel; that he was satisfied with his counsel’s representation; that the court

could impose any sentence it deemed appropriate; and that this conviction made it

extremely unlikely Corrales-Cardenas could ever reenter the United States legally

or become a United States citizen. The court then discussed all of the rights

available to a defendant in court, and confirmed that Corrales-Cardenas

understood that he was waiving all those rights by pleading guilty. The district

court also confirmed that, at the time of the change of plea hearing, there was

considerable uncertainty as to how the Guidelines would apply, in view of the fact

that Corrales-Cardenas had not yet made a proffer of information to the

government that might support either a downward departure based on the “safety

valve” provisions of 18 U.S.C. § 3553(f) and USSG §2D1.1(c)(3) or a motion for

a downward departure based on substantial assistance, pursuant to USSG §5K1.1.

      Prior to receiving a plea from Corrales-Cardenas, the district court

summarized the elements of each of the offenses that the government would have

                                         -4-
to prove beyond a reasonable doubt. Corrales-Cardenas then indicated his desire

to proceed with a guilty plea, provided a factual basis for his plea to each count,

and entered a guilty plea.

      In preparation for sentencing, the probation office prepared a presentence

report (“PSR”). The PSR calculated Corrales-Cardenas’ base offense level at 34,

based on the quantity of methamphetamine asserted as relevant conduct, which

was reduced to 29 with reductions for acceptance of responsibility and under the

“safety valve.”

      At sentencing, the government filed its motion for a downward departure to

offense level 25, based on substantial assistance under USSG §5K1.1, and moved

to dismiss one of the distribution counts, as promised in the plea agreement.

Corrales-Cardenas argued for a variance under 18 U.S.C. § 3553(a) based upon

his testimony in the trial of his co-defendant, his lack of any prior criminal

history, the lack of evidence related to any prior involvement with his co-

defendant or in the distribution of controlled substances prior to this case, his

devotion to his family, and his family’s dependence on him for support. Corrales-

Cardenas asked the court to grant him a downward variance so he could return to

his family, and he observed that it was his family that was suffering because of

his poor decisions.

      The government argued against any further variance beyond its motion for

downward departure pursuant to USSG §5K1.1, based upon the facts of the case

                                          -5-
and the evidence showing Corrales-Cardenas’ involvement in the conspiracy. The

district court generally agreed with the government that Corrales-Cardenas’

knowledge of the interaction and goals of the conspiracy contradicted any claim

of superficial involvement.

      In sentencing Corrales-Cardenas, the district court noted that Corrales-

Cardenas had been a valuable witness for the government and he deserved

recognition for that. The court further observed, however, that such value

stemmed from the extent of Corrales-Cardenas’ involvement and participation in

the distribution of methamphetamine, and that he did not deserve to be placed in

the same category of aliens who enter the United States for the sole purpose of

finding work to support their families. The court noted that there was some

disparity between Corrales-Cardenas’ sentence and that imposed on his co-

defendants, and that the only basis for that disparity was because Corrales-

Cardenas had made himself eligible for a safety valve reduction and a further

reduction by cooperating with and assisting the government. The court further

noted that Corrales-Cardenas had been raised by a poor but law-abiding and

honorable family, and that Corrales-Cardenas certainly had the ability to

distinguish between right and wrong. The court stated it was sympathetic to the

plight of Corrales-Cardenas’ wife and children, but that suffering was the

unfortunate consequence of Corrales-Cardenas’ actions.




                                         -6-
      The court then imposed a sentence of sixty-four months, followed by five

years of supervised release. The court thereafter stated:

      The Court finds that the sentence I have just imposed is the most
      reasonable sentence upon consideration of the factors enumerated in
      18 United States Code 3553.

      Furthermore, other than consideration of a “substantial assistance”
      motion, which has now been filed, the Court notes the same sentence
      would be imposed even if the advisory guideline range would have
      been determined to be improperly calculated.

R. Vol. 4 at 17.



                                  DISCUSSION

      Under Anders, “counsel [may] request permission to withdraw [from an

appeal] where counsel conscientiously examines a case and determines that any

appeal 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).




                                         -7-
      We agree with counsel that there is no nonfrivolous issue related to the

district court’s imposition of the sentence in this case. Counsel notes in his brief

that the appeal would conceivably have merit only if the guilty plea was

involuntary or otherwise invalid, or the sentence imposed was unreasonable.

After fully examining the record, we agree with counsel that there is no basis in

law or fact for either of these arguments.

      “A valid guilty plea must be knowingly, intelligently, and voluntarily

made.” United States v. Gay, 509 F.3d 1334, 1337 (10th Cir. 2007) (citing

United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998); Fed. R. Crim. P.

11). The record in this case demonstrates that the district court fully complied

with the requirements of Rule 11 and our caselaw in accepting the plea

agreement. The record reveals no evidence, nor can we conceive of any plausible

argument, that would cast any doubt upon the validity of Corrales-Cardenas’

guilty plea.

      Furthermore, “[b]earing in mind the various sentencing factors set forth by

Congress in 18 U.S.C. § 3553(a), we also discern no reason to think that the

district court abused its discretion in any way in sentencing [Corrales-Cardenas].”

Id. (citing Gall v. United States, 128 S. Ct. 586, 591(2007)). The court fully

explained why it reached the sentence it did, and we perceive no basis for

Corrales-Cardenas to challenge that sentence.




                                          -8-
                             CONCLUSION

     For the foregoing reasons, we GRANT counsel’s motion to withdraw and

DISMISS this appeal.

                                          ENTERED FOR THE COURT


                                          Stephen H. Anderson
                                          Circuit Judge




                                    -9-
