                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         AUG 2 2000
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                       No. 99-8104
v.
                                                    (Dist. of Wyoming)
                                                (D.C. No. 98-CR-148-04-B)
CESAREO HERNANDEZ-
RODRIQUEZ,

             Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      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       This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Cesareo Hernandez-Rodriquez pleaded guilty to conspiracy to possess with

intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841 and 846.

The district court sentenced Hernandez-Rodriquez to a term of imprisonment of

seventy months. Counsel for Hernandez-Rodriquez has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), indicating his belief that the appeal is

frivolous and requesting leave to withdraw as counsel. Because this court agrees

that the appeal is frivolous, we grant leave to withdraw and affirm.

      In Anders, the Supreme Court held that if counsel finds a case to be wholly

frivolous after conscientious examination, he may so advise the court and request

permission to withdraw. In so doing, counsel must submit to both the court and

his client a brief referring to anything in the record which could arguably support

the appeal; the client may raise any additional points he chooses. This court will

then undertake an examination of the entire record to determine whether the

appeal is in fact frivolous. If this court so decides, we may grant counsel’s

request to withdraw and proceed to a decision on the merits. See id. at 744.

      Hernandez-Rodriquez was indicted in the District of Wyoming on January

28, 1999, with conspiracy to possess with intent to distribute methamphetamine.

Hernandez-Rodriquez eventually entered into plea negotiations with the

government. As part of those plea negotiations, Hernandez-Rodriquez met with




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representatives of the government on July 6, 1999. At the meeting, Hernandez-

Rodriquez “proffered” certain information to the government. 1

      Prior to the commencement of the meeting, the prosecutor explained to

Hernandez-Rodriquez that the government might be willing to move the district

court for a reduction of his sentence if Hernandez-Rodriquez provided

“substantial assistance” to the government within the meaning of United States

Sentencing Guideline § 5K1.1. Based on such a motion, the district court could

depart downward from the otherwise applicable guideline range. The prosecutor,

however, did not promise to file such a motion, but only indicated that he would

consider filing such the motion after he heard what Hernandez-Rodriquez had to

say at the meeting. Despite this lack of assurance, Hernandez-Rodriquez went

ahead with the meeting.

      Subsequent to the proffer meeting, Hernandez-Rodriquez’s counsel

contacted the prosecutor and asked whether the government would file a motion

under § 5K1.1. The prosecutor stated that he believed Hernandez-Rodriquez had


      1
        Apparently, Hernandez-Rodriquez was born and lived much of his life in
Mexico. Hernandez-Rodriquez speaks and understands English, but not very
well. Prior to this meeting, Hernandez-Rodriquez’s counsel informed the
prosecutor that a Spanish speaking interpreter should be present for the meeting.
When Hernandez-Rodriquez and his attorney arrived at the meeting, however, no
interpreter was present. Although the prosecutor apologized for his error and
offered to reschedule the meeting, Hernandez-Rodriquez decided, after discussing
the issue with his attorney, to proceed with the meeting despite the lack of an
interpreter.

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not been fully forthcoming in the proffer meeting regarding his knowledge of his

co-conspirators’ involvement in the charged conspiracy. Therefore, the prosecutor

stated that he did not believe that Hernandez-Rodriquez had rendered substantial

assistance to the government.

      After this discussion, the government sent Hernandez-Rodriquez a proposed

plea agreement. The plea agreement was completely silent as to the question of

whether the government would file a motion under § 5K1.1. Hernandez-

Rodriquez signed the plea agreement nonetheless. On August 23, 1999, the

signed plea Agreement was filed with the district court. That same day,

Hernandez-Rodriquez appeared before the district court and changed his plea

from not guilty to guilty. A Spanish interpreter was present at the change of plea

hearing and interpreted the proceedings for the benefit of the Hernandez-

Rodriquez and the court. At the change of plea hearing, the district court asked

Hernandez-Rodriquez if he had knowingly and voluntarily signed the plea

agreement; Hernandez-Rodriquez responded in the affirmative. The district court

also asked Hernandez-Rodriquez if the plea agreement contained all of the terms

of the agreement between himself and the government; Hernandez-Rodriquez

again responded in the affirmative

      After the change of plea hearing, a presentence report (“PSR”) was

prepared for Hernandez-Rodriquez. The PSR did not make mention of the issue


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of substantial assistance. Although Hernandez-Rodriquez’s counsel did not object

to the PSR, he did send a letter to the probation officer stating that the

government and Hernandez-Rodriquez had discussed the issue of substantial

assistance and that the PSR should bring the issue to the court's attention for

sentencing purposes. On October 19, 1999, the probation officer filed an

addendum to the PSR noting Hernandez-Rodriquez’s position that he and the

government had discussed the issue of substantial assistance.

      The district court sentenced Hernandez-Rodriquez on November 16, 1999.

The sentencing hearing was also interpreted by a Spanish speaking interpreter. At

the hearing, Hernandez-Rodriquez’s discussed the issue of substantial assistance

with the district court. Counsel informed the district court that he had also

discussed the issue extensively with Hernandez-Rodriquez. In response to these

discussions, the court asked Hernandez-Rodriquez if he had any desire to

withdraw his guilty plea and to go to trial in his case. Hernandez-Rodriquez

indicated that he did not wish to withdraw his guilty plea. The district court

thereafter sentenced Hernandez-Rodriquez a term of seventy months, a term at the

low end of the sentencing guideline range. That sentencing range was based in

part on a three-point reduction in the base offense level based on Hernandez-

Rodriquez’s acceptance of responsibility and a further two-point reduction in the

base offense level under the safety valve provisions of the sentencing guidelines.


                                          -5-
      In his Anders brief, counsel notes that Hernandez-Rodriquez insists on

raising the following issues on appeal: (1) did the government break its promise

to Hernandez-Rodriquez to file a motion under § 5K1.1; and, if so, (2) is

Hernandez-Rodriquez entitled to withdraw his guilty plea or be resentenced at a

lower guideline level because of the breach. Pursuant to Anders, Hernandez-

Rodriquez was provided a copy of counsel’s Anders brief and notified of his right

to file a responsive pro se brief. He has chosen not to respond.

      As should be singularly clear from the extensive factual recitation set forth

above, Hernandez-Rodriquez’s allegations that the government breached a

promise to file a § 5K1.1 motion is utterly lacking in record support and is wholly

frivolous. Even assuming there was some confusion about the government’s

obligations at the time of the proffer meeting, a generous assumption indeed, the

government unequivocally indicated after the meeting that it would not file a §

5K1.1 motion because it did not believe Hernandez-Rodriquez had provided

substantial assistance. True to its word, the plea agreement ultimately extended

by the government did not include any requirement that the government file such

a motion. At the plea hearing, in open court, Hernandez-Rodriquez specifically

recognized and affirmed that the written plea agreement contained all of the

obligations of the parties and that there were no other agreements between

himself and the government. Such sworn declarations carry with them a


                                         -6-
presumption of truth; subsequent conclusory and contradictory statements are

subject to summary rejection. See Lasiter v. Thomas, 89 F.3d 699, 702-03 (10th

Cir. 1996). Furthermore, despite specific discussion of the question during the

sentencing hearing, Hernandez-Rodriquez refused the district court’s offer to

withdraw the plea and proceed to trial. Thus, after a searching review of the

entire record in this case, this court concludes there exists no basis whatsoever to

believe that an agreement to file a § 5K1.1 motion on Hernandez-Rodriquez’s

behalf was ever part of the plea agreement.

      For all those reasons set out above, counsel’s motion to withdraw pursuant

to Anders is hereby GRANTED. The judgment of conviction entered and

sentence imposed by the United States District Court for the District of Wyoming

pursuant to Hernandez-Rodriquez’s guilty plea are both hereby AFFIRMED.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




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