                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      September 5, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                        No. 13-8016
                                                (D.C. No. 1:10-CR-00314-NDF-1)
GERARDO ZAPATA-REYES,                                       (D. Wyo.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, ANDERSON, Circuit Judge, and BRORBY, Senior
Circuit Judge.


      Gerardo Zapata-Reyes pleaded guilty to three counts of a five-count

superseding indictment: Count 1, conspiracy to possess with intent to distribute, and

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

and 846; Count 2, conspiracy to launder money, in violation of 18 U.S.C.

§ 1956(a)(1)(B)(1) and (h); and Count 3, carrying a firearm during and in relation to


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). After granting a

stipulated motion to depart downward from the Sentencing Guidelines range, the

district court sentenced him to 87 concurrent months on Counts 1 and 2 and 60

consecutive months on Count 3.

      Mr. Zapata-Reyes appeals, but his appointed counsel has moved to withdraw

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no

meritorious grounds to pursue an appeal. As required under Anders, counsel has filed

a brief with the court “referring to anything in the record that might arguably support

the appeal,” id. at 744, and counsel has furnished a copy of the brief to

Mr. Zapata-Reyes. Mr. Zapata-Reyes has filed a pro se response to the Anders brief,

and the government has declined to file a response brief. For the following reasons,

we grant the motion to withdraw and dismiss this appeal.

      Our task in an Anders case is to “conduct a full examination of the record to

determine whether defendant’s claims are wholly frivolous.” United States v.

Calderon, 428 F.3d 928, 930 (10th Cir. 2005). If they are, we may grant counsel’s

motion to withdraw and dismiss the appeal. Id. “Frivolous means lacking a legal

basis or legal merit; not serious; not reasonably purposeful.” United States v. Lain,

640 F.3d 1134, 1137 (10th Cir. 2011) (brackets and internal quotation marks

omitted). In this case, we conduct our Anders examination through the lens of

plain-error review because Mr. Zapata-Reyes did not raise any of his issues in the

district court. See United States v. Vonn, 535 U.S. 55, 58-59, 62-63 (2002); United


                                          -2-
States v. Ferrel, 603 F.3d 758, 763 (10th Cir. 2010). “Plain error occurs when there

is (1) error, (2) that is plain, which (3) affects the defendant’s substantial rights, and

which (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Landeros-Lopez, 615 F.3d 1260, 1263 (10th Cir.

2010) (internal quotation marks omitted).

       Mr. Zapata-Reyes first argues that the district court failed to comply with

Federal Rule of Criminal Procedure 11(b)(1)(H)’s requirement that the court inform a

defendant of any maximum possible penalty on Count 3, the firearm charge.

Specifically, he acknowledges that the district court informed him of a statutory

minimum of five years’ imprisonment but claims the court failed to tell him that

Count 3 carried a statutory maximum sentence of life imprisonment. This argument

wholly lacks legal merit. The statute of conviction on Count 3 was 18 U.S.C.

§ 924(c)(1)(A), which provides three different minimum sentences for a person who

uses, carries, or possesses a firearm in connection with a crime of violence or a

drug-trafficking crime: five years for use, carrying, or possession of a firearm; seven

years if the firearm is brandished; and ten years if it is discharged.1 Section


1
       More fully, § 924(c)(1)(A) provides:
       Except to the extent that a greater minimum sentence is otherwise
       provided by this subsection or by any other provision of law, any person
       who, during and in relation to any crime of violence or drug trafficking
       crime (including a crime of violence or drug trafficking crime that
       provides for an enhanced punishment if committed by the use of a
       deadly or dangerous weapon or device) for which the person may be
       prosecuted in a court of the United States, uses or carries a firearm, or
                                                                              (continued)
                                           -3-
924(c)(1)(A) does not provide any maximum sentence, life or otherwise.

Mr. Zapata-Reyes has not identified the source of his belief that he faced a maximum

sentence of life imprisonment nor have we uncovered any potentially applicable

maximum life sentence.2 Furthermore, the district court informed him that the

Guidelines range for the drug offense (Count 1) was between a mandatory minimum

120 months and 135 months, that the minimum five years on the gun offense would

be added to that, and that “there is the potential for a higher sentence if facts and

circumstances surface that encourage the Court to go above the low end

recommendation or that trigger the guidelines in a way that we don’t know today.”

R. Vol. 3 at 15. Hence, we see no plain error in the fact that the district court did not




      who, in furtherance of any such crime, possesses a firearm, shall, in
      addition to the punishment provided for such crime of violence or drug
      trafficking crime—

      (i) be sentenced to a term of imprisonment of not less than 5 years;

      (ii) if the firearm is brandished, be sentenced to a term of imprisonment
      of not less than 7 years; and

      (iii) if the firearm is discharged, be sentenced to a term of imprisonment
      of not less than 10 years.
2
       The only reference to a life sentence in § 924 comes in subsection
(c)(1)(C)(ii), which mandates a life sentence in the case of a second or subsequent
conviction under § 924(c) if the firearm “is a machinegun or a destructive device, or
is equipped with a firearm silencer or firearm muffler.” But Mr. Zapata-Reyes was
not convicted under that subsection.


                                           -4-
advise him that he faced a maximum sentence of life imprisonment on Count 3, and

we conclude that this argument is frivolous.3

      Mr. Zapata-Reyes next contends that he did not understand the nature of

Count 3, which charged him as follows:

             From on or about November 2007, through and including on or
      about November 29, 2010, in the District of Wyoming, [defendant]
      knowingly carried a firearm during and in relation to a drug trafficking
      crime, to wit: conspiracy to possess with intent to distribute and to
      distribute methamphetamine, in violation of 21 U.S.C. § 846, as more
      fully alleged in Count One of this indictment.

             In violation of 18 U.S.C. § 924(c)(1)(A).
Supp. R. Vol. 1 at 17. Mr. Zapata-Reyes observes that, during the plea hearing, the

district court described the predicate drug trafficking crime as “possession with intent

to distribute and to distribute methamphetamine,” R. Vol. 3 at 22 (emphasis added),

when that charge (Count 1) was “conspir[acy] . . . to possess with intent to distribute,

and to distribute . . . methamphetamine,” Supp. R. Vol. 1 at 16 (emphasis added). He

claims that but for this misinformation about an element of the firearms charge, he

would not have pleaded guilty to Count 3. We see no plain error. The predicate

offense was charged in part under 21 U.S.C. § 846, which provides that “[a]ny person

who attempts or conspires to commit any offense defined in this subchapter shall be

subject to the same penalties as those prescribed for the offense, the commission of

3
       In a related issue raised in the Anders brief, counsel concedes that the district
court complied with Rule 11(b)(1)(I)’s requirement to inform a defendant of “any
mandatory minimum penalty.” As our foregoing discussion makes clear, the district
court did precisely that, so any argument to the contrary is frivolous.


                                          -5-
which was the object of the attempt or conspiracy.” Consequently, there is no

meaningful distinction between conspiracy to possess and possession for purposes of

Count 3’s predicate drug-trafficking crime. Further, Mr. Zapata-Reyes has not taken

issue with his plea of guilty to Count 1’s conspiracy charge. Hence, although the

district court misstated the drug charge as possession instead of conspiracy to

possess, that misstatement did not affect Mr. Zapata-Reyes’s “substantial rights” or

“seriously affect[] the fairness, integrity, or public reputation of [his] judicial

proceedings,” Landeros-Lopez, 615 F.3d at 1263, as required under plain-error

review. Accordingly, we conclude that this argument is frivolous.4

       Mr. Zapata-Reyes’s third argument is that the district court failed to establish

an adequate factual basis that he knowingly carried a firearm during and in relation to

a drug trafficking crime, as charged in Count 3 under § 924(c)(1)(A). He claims the

court did not establish that he was engaged in a substantive drug crime while he

carried the gun and that the court coerced him during the plea colloquy.5 We

disagree.

       “Before entering judgment on a guilty plea, the court must determine that there

is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). “This rule is intended to

4
       Counsel raises a related issue in the Anders brief but concedes that the district
court adequately informed Mr. Zapata-Reyes of the elements of the firearm charge
(Count 3) as well as the money laundering charge (Count 2). We agree and conclude
that there is no nonfrivolous argument as to either charge.
5
       Counsel also raises this issue in the Anders brief but concedes (and we agree)
that there is no nonfrivolous argument to support it.


                                           -6-
ensure the accuracy of the plea through some evidence that a defendant actually

committed the offense.” Landeros-Lopez, 615 F.3d at 1263 (internal quotation marks

omitted). “A firearm is carried ‘during and in relation to’ the underlying crime when

the defendant avails himself of the weapon and the weapon plays an integral role in

the underlying offense.” United States v. Brown, 400 F.3d 1242, 1249 (10th Cir.

2005) (ellipsis, brackets, and internal quotation marks omitted). “The ‘during and in

relation to’ standard requires the government to prove a direct nexus between the

defendant’s carrying of a firearm and the underlying drug crime.” Id. “To establish

this nexus, we require evidence that the defendant intended the firearm to be

available for use in the offense.” Id. Further, a firearm is carried “in relation to” a

drug trafficking crime if it has at least “the potential of facilitating” such a crime. Id.

at 1250 (internal quotation marks omitted). Section 924(c)’s “carry” provision

“applies to a person who knowingly possesses and conveys firearms in a vehicle,

including in the locked glove compartment or trunk of a car, which the person

accompanies.” United States v. Lindsey, 389 F.3d 1334, 1338 (10th Cir. 2004)

(internal quotation marks omitted).

       The charges brought against Mr. Zapata-Reyes arose after he was arrested in

Montana during a traffic stop. In his car, police found $4,000 in cash and a gun, each

wrapped in plastic, but no drugs. At the plea colloquy, Mr. Zapata-Reyes attested

that when he was stopped and arrested, he was driving from Wyoming to Washington

to purchase drugs with the $4,000, which were drug proceeds from similar, previous


                                           -7-
trips that resulted in drug sales in Wyoming. He admitted he possessed the gun and

put it in his car with the money before leaving on his trip, although he denied ever

having brought it on previous drug trafficking trips to Washington.

       This was an adequate factual basis for Count 3 because it shows that

Mr. Zapata-Reyes knowingly possessed and transported the gun in his vehicle and

that the gun was sufficiently connected to the drug-trafficking conspiracy that he was

acting in furtherance of when he was arrested. The circumstances suggest that he

“intended the firearm to be available for use in the offense,” Brown, 400 F.3d

at 1249, and that the firearm had “the potential of facilitating . . . the drug trafficking

offense,” id. at 1250 (internal quotation marks omitted). See United States v. Winder,

557 F.3d at 1129, 1139 (10th Cir. 2009) (“Firearms are, after all, often used by drug

dealers to protect merchandise and cash, as well as to intimidate prospective

purchasers.”). Further, Mr. Zapata-Reyes’s charge of district-court coercion is

unfounded because the court merely asked him questions about the presence of the

gun in the car. When that questioning began to founder, defense counsel explained

that Mr. Zapata-Reyes had a hard time accepting that the presence of the gun together

with the drug money was sufficient under the law for a conviction even though he did

not brandish the gun or use it to threaten anyone. On further questioning by the

court, Mr. Zapata-Reyes stated that he put the gun in the trunk before he started his

trip and that the money was on the seat. We therefore see no plain error in the

district court’s development of the factual basis, and this argument is frivolous.


                                           -8-
       Finally, Mr. Zapata-Reyes contends that the superseding indictment was

fatally defective as to Count 3 because of two omissions: (1) a phrase in § 924(c)

describing the predicate offense as one “for which the person may be prosecuted in a

court of the United States,” which he characterizes as jurisdictional; and (2) the

five-year minimum penalty with which the government charged him. He claims that

because of these omissions, he was not given the required notice of the charge

against him. He urges us to apply the Supreme Court’s recent decision in Alleyne v.

United States, 133 S. Ct. 2151 (2013), which he asserts held that all elements of

§ 924(c) are essential and must be on the face of the indictment. He also relies on

Hamling v. United States, 418 U.S. 87 (1974), for the notion that “an indictment is

insufficient when it fails to set forth the offense in the words of the statute,” Aplt.

Pro Se Br. at 16.

       We first conclude that Mr. Zapata-Reyes’s reliance on Alleyne is misplaced.

Alleyne holds only that “[f]acts that increase the mandatory minimum sentence are

. . . elements and must be submitted to the jury and found beyond a reasonable

doubt.” 133 S. Ct. at 2158. Section 924(c)(1)(A)(i)’s five-year minimum does not

require proof of any facts that were not asserted in the superseding indictment.

Hence we see nothing inconsistent between the superseding indictment and Alleyne.

Mr. Zapata-Reyes’s argument that an element of jurisdiction was lacking in Count 3

is wholly without merit because it is indisputable that the predicate drug trafficking




                                           -9-
offense charged was a crime “for which [Mr. Zapata-Reyes could] be prosecuted in a

court of the United States,” § 924(c)(1)(A).

       We further disagree with Mr. Zapata-Reyes’s reading of Hamling for the

proposition that an indictment is insufficient if it fails to set forth the elements of an

offense in the words of the relevant statute. Hamling actually stated that “[i]t is

generally sufficient that an indictment set forth the offense in the words of the statute

itself, as long as those words of themselves fully, directly, and expressly, without any

uncertainty or ambiguity, set forth all the elements necessary to constitute the offence

intended to be punished.” 418 U.S. at 117 (internal quotation marks omitted).

Plainly, under Hamling, the words of a statute can be sufficient, but their absence

does not render an indictment insufficient. See United States v. Bullock, 914 F.2d

1413, 1414 (10th Cir. 1990) (relying on Hamling for the proposition that “[a]n

indictment . . . need not quote the statutory language to be legally sufficient”).

       In sum, Mr. Zapata-Reyes has not identified any plain error in the superseding

indictment, and we find his arguments to be frivolous.

       For the foregoing reasons, we conclude that there are no nonfrivolous grounds

for appeal. We therefore grant counsel’s motion to withdraw and dismiss the appeal.


                                                    Entered for the Court


                                                    Stephen H. Anderson
                                                    Circuit Judge



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