                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                           June 21, 2006
                                  TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                           Clerk of Court


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

               Plaintiff-Appellee,                          No. 05-8081
          v.                                               (D. W yoming)
 JESUS DOM IN GUEZ BELTRAN,
                                                     (D.C. No. 05-CR-69-ABJ)
               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, 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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On June 6, 2005, Jesus Dominguez Beltran pleaded guilty to one count of

conspiracy to traffic in methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B), and 846. The district court sentenced M r. Beltran to 57 months’



      *
        This order and judgment is not binding precedent, except under the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.
imprisonment, 36 months’ supervised release, and ordered him to pay a $500 fine.

M r. Beltran requested that his counsel appeal his sentence because the

government had not filed a motion for substantial assistance. M r. Beltran’s

counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

requesting leave to w ithdraw as counsel. Counsel contends that M r. Beltran’s

possible argument–that the government’s refusal to file a motion for substantial

assistance was unlawful–is frivolous. Counsel also finds any challenge to the

reasonableness of M r. Beltran’s sentence to be without merit. M r. Beltran filed a

letter and reply brief in response to counsel’s Anders brief, claiming that the

government breached his plea agreement by not filing a substantial-assistance

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

                                I. BACKGROUND

      On M arch 18, 2005, M r. Beltran was indicted for conspiracy to possess

with intent to distribute, and to distribute methamphetamine, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Two other co-defendants, M andi

Sakala Humphrey and Jose Luis M acias, were also indicted. On June 6, 2005,

M r. Beltran pleaded guilty to the one count charged, and he stipulated in a plea

agreement that the most probable quantity of drugs involved was between 350 and

500 grams. Rec. vol. I, doc. 43, at 4 ¶ 8 (Plea Agreement, filed June 6, 2005).

The government agreed to recommend a three-level downward adjustment for

acceptance of responsibility if M r. Beltran “fully accept[ed] responsibility” and

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promptly pleaded guilty. Id. at 8 ¶ 17(a)-(b). The government also agreed to

recommend a Section 5K1.1 downward departure “[i]f the United States

determines, in its sole discretion, that the Defendant has fully, completely, and

truthfully cooperated with the United States.” Id. at 9 ¶ 17(e).

      The district court held a Change of Plea Hearing on June 6, 2005. During

the Rule 11 colloquy, M r. Beltran stated that (1) he had been satisfied with his

counsel, (2) he had voluntarily signed the plea agreement, (3) he had understood

the agreement and had discussed it with his counsel, and (4) he had not relied on

any promises not contained in the plea agreement. Rec. vol. IV, at 5-7. The court

explained that it did not know his sentence and would be influenced by the pre-

sentence report (“PSR”) and “whether the Government files certain motions for

substantial cooperation.” Id. at 11.

      At the hearing, M r. Beltran admitted to the underlying elements of the

offense charged–that he knowingly conspired with M r. M acias and M s. Humphrey

to posses with intent to distribute, and to distribute at least 50 grams of

methamphetamine. Id. at 16-17. M r. Beltran further stipulated that he helped M r.

M acias to transport methamphetamine from Ogden, Utah to Gillette, W yoming,

and the amount of drugs in the conspiracy was betw een 350 and 500 grams. Id. at

18-19. Based on M r. Beltran’s responses, the court concluded that the guilty plea

was knowing, voluntary, and supported by an adequate factual basis. Id. at 21-22.

      The PSR recommend a base offense level of 30 and a three-level

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adjustment for acceptance of responsibility. The PSR did not recommend a

safety-valve reduction under 18 U.S.C. § 3553(f), on the grounds that M r. Beltran

had not fulfilled his obligations to provide all information and evidence to the

government. M r. Beltran objected to the PSR’s recommendation that he was not

eligible for a § 3553(f) safety-valve reduction in sentencing.

      At sentencing on August 19, 2005, M r. Beltran sought a continuance

because he wanted to negotiate more with the government on a Section 5K1.1

motion for substantial assistance. The district court declined to issue a

continuance and made it clear that “[t]he issue of further downward departure is

available within one year should the Government decide to make it based upon

the additional information that you have provided in this case.” Rec. vol. V, at 5

(Sent. Tr., dated Aug. 19, 2005). The government agreed to recommend a safety-

valve reduction but indicated that it w ould not file a Section 5K1.1 motion.

      Prior to the announcement of his sentence, M r. Beltran (both through his

counsel and personally) explained to the court a series of events related to his

government cooperation. M r. Beltran’s attorney stated that he had represented

M r. Beltran during four proffers in the federal case, and “the proffers did not go

well. W e ended up meeting about four times, and the Government was not happy

with M r. Beltran. He contradicted himself and was not fully forthcoming.” Id. at

9. Counsel then read aloud the English translation of two letters that M r. Beltran

had received from his brother in M exico. The letters suggested that family

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members had been threatened and his brother had been murdered because of M r.

Beltran’s cooperation.

      M r. Beltran then explained how he had initially provided a map for agents

showing where drugs and money had been hidden, and before his federal

indictment, he had attempted to make phone calls and set up drug transactions for

law enforcement agents. M r. Beltran stated that upon his arrest and indictment, a

prosecutor had misinformed the court that an agent could not reach him, thus

prompting the court to retain M r. Beltran in custody while the federal charges

were pending. Id. at 16-17. M r. Beltran stated that, if he had remained released

on bond, those individuals that he had “set . . . up” “would have never done

[anything] to my family if they would have never found out.” Id. at 19.

      At sentencing, the district court applied a § 3553(f) safety-valve reduction

and reduced M r. Beltran’s offense level from 27 to 25. The court then sentenced

M r. Beltran to 57 months’ imprisonment, at the low end of the advisory range,

and it also imposed 36 months’ supervised release and a $500 fine.

                                II. DISCUSSION

      In Anders, the Supreme Court held that “if counsel finds his case to be

wholly frivolous, after a conscientious examination of it, he should so advise the

court and request permission to w ithdraw.” 386 U .S. at 744. This court “must

then conduct a full examination of the record to determine w hether defendant’s

claims are wholly frivolous. If [we] conclude[ ] after such an examination that

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the appeal is frivolous, [we] may grant counsel’s motion to withdraw and may

dismiss the appeal.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir.

2005).

         C ounsel’s brief, w hich w as also furnished to M r. Beltran, identified two

potential appellate issues: (1) that the government’s refusal to file a substantial-

assistance motion was unlawful; and (2) that M r. Beltran’s sentence was

unreasonable. In response to counsel’s brief, M r. Beltran filed a supplemental

letter and pro se reply brief that addressed these possible challenges. He contends

that the government’s failure to file a Section 5K1.1 motion breached the plea

agreement as he understood it w hen he entered into the agreement.

         M r. Beltran’s letter could also be construed to raise a claim of ineffective

assistance of counsel. As he acknowledges in his letter, however, he must pursue

that claim in a collateral proceeding under 28 U.S.C. § 2255. See United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (“[Ineffective

assistance] claims brought on direct appeal are presumptively dismissible, and

virtually all w ill be dismissed.”).

A.       The government’s refusal to file a Section 5K1.1 motion

         Counsel’s Anders brief first identifies as a potential issue on appeal the

government’s refusal to file a Section 5K1.1 motion reflecting M r. Beltran’s

substantial assistance. The decision to file a substantial-assistance motion is left

to the prosecutor unless “a formal agreement . . . would bind the prosecutor.”

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United States v. M assey, 997 F.2d 823, 824 (10th Cir. 1993). Further, this court

can review the government’s refusal to file a substantial-assistance motion only if

that decision was based on an unconstitutional motive or was not rationally

related to a legitimate government end. See Wade v. United States, 504 U.S. 181,

185-86 (1992); United States v. Duncan, 242 F.3d 940, 946 (10th Cir. 2001).

      W e agree with counsel that no non-frivolous grounds appear on this record

to challenge the government’s refusal to file a Section 5K1.1 motion. First, the

plea agreement clearly leaves the decision to file a substantial-assistance motion

to the “sole discretion” of the prosecutor. Rec. vol. 1, doc. 43, at 9 ¶ 17(e).

Second, M r. Beltran has not asserted any unconstitutional motive for the

government’s failure to file the motion, and the record on appeal does not suggest

such an improper motive. Cf. Duncan, 242 F.3d at 947 (explaining that

unconstitutional motives include those based on a defendant’s race, religion, or

national origin). Indeed, we know from the sentencing transcript that M r. Beltran

“was not fully forthcoming” during his four proffers. Rec. vol. V, at 9. The

government has a legitimate interest in filing substantial-assistance motions only

for those defendants who fully cooperate and are genuinely forthcoming.

B.    Reasonableness of M r. Beltran’s sentence

      Counsel also contends that any challenge to the reasonableness of M r.

Beltran’s sentence w ould be w ithout merit. At sentencing, the district court

applied a safety-valve reduction, and the 57-month sentence was at the bottom

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end of the advisory range and below the statutory minimum of 60 months’

imprisonment. See 21 U.S.C. § 841(b)(1)(B).

      A sentence within a properly calculated advisory range is presumptively

reasonable, and “[t]his is a deferential standard that [M r. Beltran] may rebut by

demonstrating that the sentence is unreasonable when viewed against the other

factors delineated in § 3553(a).” United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006). The court was not required to consider individually each §

3553(a) factor before announcing a sentence, see United States v. Rines, 419 F.3d

1104, 1107 (10th Cir. 2005), but it did discuss M r. Beltran’s personal and family

history and was aware of the alleged threats to his family in M exico, see Rec. vol.

V, at 6-7, 22-24. M r. Beltran has identified no mitigating factors that would have

counseled a sentence lower than the advisory range, and we can discern no reason

why the advisory Guidelines range was improperly calculated. Thus, any claim

challenging the reasonableness of M r. Beltran’s sentence would be frivolous.

C.    Breach of the plea agreement

      M r. Beltran argues in his reply brief that the government breached the plea

agreement by not filing a Section 5K1.1 motion. The plea agreement provides

that the government will recommend such a motion at sentencing, or within one

year of sentencing, “[i]f the United States determines, in its sole discretion, that

the Defendant has fully, completely, and truthfully cooperated with the United

States.” Rec. vol. I, doc. 43, at 9 ¶ 17(e). W e “use[] a two-step analysis to

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determine whether the United States violated a plea agreement: the sentencing

court should (1) examine the nature of the promise; and (2) evaluate the promise

in light of the defendant’s reasonable understanding of the promise at the time of

the guilty plea.” United States v. Guzman, 318 F.3d 1191, 1195-96 (10th Cir.

2003). W e review de novo “[a] claim that the government has breached a plea

agreement.” Id. at 1195.

      Under the first step, M r. Beltran’s plea agreement allowed the government

to determine, “in its sole discretion,” w hether he had fully and truthfully

cooperated to warrant a Section 5K1.1 motion. The plea agreement contained no

unqualified promise by the government to file such a motion. As to the second

step, M r. Beltran stated his understanding at the plea hearing that the plea

agreement was complete and that he was relying on no promises made to him

outside its provisions. Rec. vol. IV, at 17. W e therefore reject as frivolous M r.

Beltran’s claim that the government breached the plea agreement.

                                III. CONCLUSION

      Accordingly, we GRANT counsel’s motion to withdraw and DISM ISS the

appeal.

                                        Entered for the Court,



                                        Robert H. Henry
                                        Circuit Judge



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