                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   February 7, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                           FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

    v.                                                 No. 07-3006
                                               (D.C. No. 06-CR-20062-JWL)
    GERARDO MOJICA-FABIAN, a/k/a                         (D. Kan.)
    Gordo,

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, McKAY, and ANDERSON, Circuit Judges.



         Defendant Gerardo Mojica-Fabian was charged by superseding indictment

and convicted by a jury of one count of conspiracy to distribute and possess with

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

count of possession of methamphetamine with intent to distribute, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii) and 18 U.S.C. § 2. The jury found that


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Mr. Mojica-Fabian conspired to distribute or possess with intent to distribute

more than 1500 grams of methamphetamine. R. Doc. 59, at 2. The district court

adopted the presentence report in its entirety and sentenced Mr. Mojica-Fabian to

235 months’ incarceration.

      On appeal, Mr. Mojica-Fabian’s counsel filed an Anders brief, stating that

he “has examined the record for issues which might arguably support an appeal

and finds . . . there are no issues presenting any basis for the vacating of the

conviction, granting a new sentencing hearing or reduction of appellant’s

sentence.” Aplt. Br. at 7. He moves to withdraw as counsel. See Anders v.

California, 386 U.S. 738 (1967). We received no response from

Mr. Mojica-Fabian, and the government also declined to file a response. After

independently reviewing the record, we agree that Mr. Mojica-Fabian has no

legally non-frivolous issues to appeal either his conviction or his sentence. We

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


                                     Background

      On February 18, 2006, an Oklahoma state trooper conducting a radar sweep

on Interstate 40 stopped a Toyota Highlander SUV for speeding. R., Vol. II

at 67-68, 71, 100. The driver was Freddy Ramirez, and his girlfriend was with

him. Id. at 21, 68. In keeping with standard practice, the trooper asked

Mr. Ramirez to move to his patrol car. Id. at 72. The trooper noted


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Mr. Ramirez’s increasing nervousness and anxiety. Id. at 72-73, 75. The trooper

was also skeptical of Mr. Ramirez’s explanation that he had been traveling from

Kansas City to California and back “in a very short period of time” in order to

visit his sick aunt. Id. at 74-75. Based on the trooper’s training that such

circumstances indicate that a person may be in possession of illegal substances,

the trooper asked Mr. Ramirez if he could search his vehicle. Id. at 73-74, 76.

Mr. Ramirez consented, and the trooper found six cellophane-wrapped bundles in

the spare tire. Id. at 69-70. The trooper placed Mr. Ramirez under arrest. Id.

at 70. The contents were field-tested and later confirmed by laboratory tests to be

563.6 grams of methamphetamine. Id. at 70-71, 172-75, 182. Mr. Ramirez

agreed to cooperate with law enforcement in conducting a controlled delivery. Id.

at 79. The trooper turned the Highlander and its occupants over to a special agent

of the Drug Enforcement Administration (DEA), and they were transported to

Kansas City, Mr. Ramirez’s original destination. Id. at 74, 78-80.

      The next day, DEA agents recorded Mr. Ramirez while he placed two

telephone calls to Mr. Mojica-Fabian (who is nicknamed “Gordo”). Id. at 6-7, 14,

16, 141-43. A controlled delivery was set up to occur at the Latino Market in

Overland Park, Kansas, and the Highlander, Mr. Ramirez, and his girlfriend were

transported to that location. Id. at 19. Mr. Ramirez, his girlfriend, and one

bundle of the drugs were placed in the Highlander (which was disabled), and the

occupants were kept under surveillance. Id. at 19-21, 88-89. A maroon Plymouth

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Voyager van drove up shortly after noon. Id. at 89-90. The van parked near

Mr. Ramirez’s vehicle, and two Hispanic men got out and approached the rear of

the Highlander. Id. at 90.

      Mr. Mojica-Fabian was identified as the driver of the van. Id. at 90-91.

Mr. Ramirez got out of the Highlander and gave the key to Mr. Mojica-Fabian,

who then got in the Highlander. Id. at 91. Mr. Ramirez’s girlfriend also got out

of the Highlander, and she and Mr. Ramirez walked away. Id. The other

Hispanic man started to leave in the van but was stopped by law enforcement. Id.

at 92. Mr. Mojica-Fabian was also arrested and was charged as indicated above.

Id. at 92-93, 100.

      Mr. Ramirez testified that he made the February 2006 trip at the direction

of Mr. Mojica-Fabian’s brother, a man known as “Pancho,” and was to be paid

$5000. Id. at 130-31, 133. He said that Mr. Mojica-Fabian brought him a

package beforehand to give to Pancho in California. Id. at 134-35. He said that

Pancho had paid him for two other drug runs to California, in May and November

2005. Id. at 54-55, 133, 152-53. The presentence report provided further details

of Mr. Mojica-Fabian’s involvement with Mr. Ramirez’s three trips.


                                     Analysis

      Pursuant to the Supreme Court’s decision in Anders, a court-appointed

defense counsel may “request permission to withdraw [from an appeal] where


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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 court 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).

      In his Anders brief, counsel indicated that this appeal would conceivably be

meritorious only if the conviction should be vacated, a new sentencing hearing

should be granted, or Mr. Mojica-Fabian’s sentence should be reduced.


                                        Conviction

      Counsel submitted the trial transcript, which we have independently

reviewed.

      In evaluating whether the evidence is sufficient to support the jury’s
      verdict, we review the record de novo and ask only whether, taking
      the evidence-both direct and circumstantial, together with the
      reasonable inferences to be drawn therefrom-in the light most
      favorable to the government, a reasonable jury could find
      [Mr. Mojica-Fabian] guilty beyond a reasonable doubt. We evaluate
      the sufficiency of the evidence by considering the collective
      inferences to be drawn from the evidence as a whole.




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United States v. Ramirez, 479 F.3d 1229, 1249-50 (10th Cir. 2007) (quotations

and citations omitted), cert. denied, 2008 WL 114113 (U.S. Jan. 14, 2008)

(No. 07-7189).

      The jury verdict is amply supported by the evidence, as summarized above.

We find no non-frivolous grounds for appeal as to Mr. Mojica-Fabian’s

conviction on either count.


                                      Sentence

      Counsel submitted all of the materials relevant to Mr. Mojica-Fabian’s

sentencing, and we have independently reviewed them. We review a criminal

sentence under an abuse of discretion standard. Gall v. United States, 128 S. Ct.

586, 597 (2007). “We will set aside [a] sentence only if it is procedurally or

substantively unreasonable in light of the statutory factors contained in 18 U.S.C.

§ 3553(a).” United States v. Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007). A

sentence falling within a properly calculated guideline range is presumptively

reasonable. Id.

      The district court determined, consistent with the presentence report, that

Mr. Mojica-Fabian’s total offense level was 38 with a criminal history of one,

“which produces under the advisory guidelines a range of 235 to 293

months . . . .” R., Vol. III at 14. The court thoroughly explained the reasons for

its decision not to reduce Mr. Mojica-Fabian’s total offense level on the ground


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that he was a minor participant, as argued by his counsel, see id. at 8-12, and to

sentence appellant at the low end of the guideline range the court determined to

be applicable, see id. at 14-21. The court acknowledged that the guidelines are

advisory, but noted in particular the harmfulness of methamphetamine and

Mr. Mojica-Fabian’s lack of contrition or acceptance of responsibility for his

actions. Id. at 16-17. The court exercised its discretion not to depart downward

from the guideline range, concluding that its sentence of 235 months’

incarceration—

      would reflect the seriousness of the offense, promote respect for the
      law, and provide just punishment as set forth in 18 U.S.C. Section
      3553(a) (2) (A), and the length of the sentence should afford
      adequate deterrence and protect the public from further crimes of the
      defendant in accordance with the provisions of 18 U.S.C. Section
      3553(a) (2) (B) and (C).

R., Vol. III at 19. We find no non-frivolous grounds for appeal as to the

reasonableness of Mr. Mojica-Fabian’s sentence.

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

DISMISS the appeal.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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