                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                October 12, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                    No. 06-1453
          v.                                            (D. Colorado)
 JA IM E H U MB ER TO G A RC IA -              (D.C. No. 04-cr-00471-W DM )
 FUEN TES,

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Defendant Jaime Humberto Garcia-Fuentes pleaded guilty to possession

with intent to distribute 50 grams or more of methamphetamine. See 21 U.S.C.

§ 841(a)(1) and (b)(1)(B)(viii). The district court sentenced him to a statutory

mandatory minimum 60 months’ imprisonment, followed by 4 years’ supervised

release. On appeal his court-appointed counsel filed an Anders brief and moved



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the party’s request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967).

Defendant Garcia-Fuentes was given until M ay 18, 2007, to file a response to

counsel’s brief, but did not do so. W e sua sponte extended his time to respond to

June 29, 2007, but again he failed to respond. The government declined to file a

brief. W e grant counsel’s motion to withdraw and dismiss the appeal.

      On November 15, 2004, a grand jury from the U nited States D istrict Court

for the D istrict of C olorado handed down a two-count indictment against

Defendant G arcia-Fuentes. Count One charged him with possession with intent to

distribute 50 grams or more of a substance containing methamphetamine; Count

Two charged him with unlawful reentry of a deported alien. See 8 U.S.C.

§ 1326(a)(2). Under a plea agreement with the government Defendant Garcia-

Fuentes agreed to plead guilty to Count One; in return the government agreed to

seek no additional charges and to dismiss Count Two. Defendant Garcia-Fuentes

and the government stipulated under Federal Rule of Criminal Procedure

11(c)(1)(C) to a sentence of not more than 60 months’ imprisonment.

      On June 16, 2006, Defendant Garcia-Fuentes entered his plea. In the plea

agreem ent he admitted to the following description of the offense: On

October 30, 2004, he received a phone call from Jerry Padilla seeking four ounces

of methamphetamine for resale to a person who turned out to be an undercover

officer. After a series of phone calls the parties agreed that Padilla and Defendant

Garcia-Fuentes would meet at M ichael Pagel’s house and then proceed to a

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prearranged location to sell the drugs to the undercover officer. At Pagel’s house

Defendant Garcia-Fuentes gave Padilla the four ounces of methamphetamine

wrapped in a baby diaper. The three men then proceeded to the prearranged

location; Padilla rode with Pagel, and Defendant Garcia-Fuentes followed. At the

designated location Pagel and Padilla sold the drugs to the undercover officer for

$5,000 and were immediately arrested. Upon Padilla and Pagel’s arrest,

Defendant Garcia-Fuentes left the scene. He was later stopped and his vehicle

searched. The searching officers discovered baby diapers identical to the one

enclosing the drugs. Padilla and Pagel admitted their guilt, and Padilla implicated

Defendant Garcia-Fuentes.

      The district court, in accordance with the plea agreement, sentenced

Defendant Garcia-Fuentes to the statutory minimum 60 months’ imprisonment

and 4 years’ supervised release. Defendant Garcia-Fuentes filed a pro se appeal.

      In Anders the Supreme Court held that a court-appointed defense 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). To

this end, counsel must

      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

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       such an examination that the appeal is frivolous, it may grant
       counsel’s motion to withdraw and may dismiss the appeal.

Id. (citations omitted).

       In his Anders brief Defendant Garcia-Fuentes’s counsel contends that there

is no legally cognizable issue on appeal. Defendant Garcia-Fuentes has not filed

a response. W e can discern no meritorious issues for appeal. Based on the

admissions by Defendant Garcia-Fuentes, the district court could not have

imposed a lower sentence. See United States v. Payton, 405 F.3d 1168, 1173

(10th Cir. 2005) (“no constitutional error in sentencing . . . [to] the mandatory

minimum sentence”). And both the plea agreement and the plea colloquy show

that Defendant Garcia-Fuentes’s guilty plea was entered knowingly, voluntarily,

and intelligently. See United States v. Hurlich, 293 F.3d 1223, 1230 (10th

Cir.2002) (“A defendant’s guilty plea must be knowing, voluntary, and

intelligent.”).

       W e GRANT counsel’s motion to withdraw and DISM ISS this appeal.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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