                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               MAR 30 1998
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

              v.                                             No. 97-5067
                                                        (D.C. No. 90-CR-92-B)
 MARIO R. GARCIA-EMANUEL,                                    (N.D. Okla.)

          Defendant-Appellant.


                                ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, 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); 10th Cir. R. 34.1.9. Therefore, the case is ordered

submitted without oral argument.

      Defendant Mario Garcia-Emanuel appeals the district court’s partial denial of his

motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Counsel for

defendant has determined the appeal is frivolous and has filed a motion to withdraw and


      *
          This order and judgment is not binding precedent, except under the doctrines of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.
an Anders brief outlining defendant’s arguments. See Anders v. California, 386 U.S. 738,

744 (1967). Anders instructs that such a brief must refer to “anything in the record that

might arguably support the appeal.” Id. Consistent with this requirement, counsel has

identified two arguments: (1) During resentencing, the district court erred in imposing a

four-point enhancement under U.S.S.G. § 3B1.1; and (2) during resentencing, the court

erred in calculating the drug quantity to be used in determining defendant’s sentence.

       Defendant was furnished a copy of the Anders brief to allow him “to raise any

points that he chooses.” Id. In his pro se brief, defendant acknowledges the § 3B1.1

argument is frivolous, but outlines two additional arguments he wishes to assert on

appeal. Specifically, he contends his counsel on direct appeal failed to properly challenge

the sufficiency of the evidence underlying his continuing criminal enterprise conviction,

and that the district court erred at resentencing by incorrectly concluding it lacked

authority to depart below the statutory mandatory minimum sentence.

       We conclude all of defendant’s claims are without merit. We grant counsel’s

motion to withdraw and affirm the partial denial of defendant’s § 2255 motion.

                                              I.

       Defendant was convicted on April 1, 1991, of one count of conspiracy to possess

with intent to distribute and to distribute cocaine, one count of continuing criminal

enterprise (CCE), five counts of income tax evasion, one count of conspiracy to launder

money, and seventeen counts of money laundering. The district court denied defendant’s


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motion for judgment of acquittal on the conspiracy and CCE counts, but granted it as to

the seventeen money laundering counts and the money laundering conspiracy count. Both

the defendant and the government appealed. This court affirmed the conspiracy and CCE

convictions, reinstated five of the money laundering counts, and reinstated the money

laundering conspiracy count. United States v. Garcia-Emanuel, 14 F.3d 1469, 1472-79

(10th Cir. 1994). On remand, the district court resentenced defendant to a total term of

292 months’ imprisonment and five years’ supervised release. Defendant did not appeal

the resentencing.

       Approximately two years after resentencing, defendant filed his § 2255 motion to

vacate, set aside, or correct sentence. Defendant asserted his counsel on direct appeal was

ineffective for failing to adequately challenge the CCE conviction and for failing to argue

the conspiracy conviction should be vacated as a lesser included offense in the CCE

conviction, and asserted his counsel at resentencing was ineffective for failing to

challenge various portions of the presentence report. The district court rejected

defendant’s argument that counsel was ineffective in challenging the CCE conviction, but

agreed counsel was ineffective in failing to challenge on the lesser-included issue. The

court vacated defendant’s conspiracy conviction and resentenced him to a total term of

240 months’ imprisonment, which is the statutory mandatory minimum sentence for

persons convicted of engaging in a CCE. 21 U.S.C. § 848(a). Defendant was granted

leave to proceed on appeal in forma pauperis.


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                                              II.

       In reviewing the arguments raised by defendant, we apply a de novo standard to

the district court’s legal rulings and a clearly erroneous standard to its findings of fact.

United States v. Cox, 83 F.3d 336, 338 (10th Cir. 1996).



Ineffective assistance of counsel on direct appeal

       To prevail on this claim, defendant must demonstrate (1) counsel’s performance

was constitutionally deficient, i.e., it fell below an objective standard of reasonableness,

Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2) there is a reasonable

probability that, but for counsel’s errors, the outcome of the proceedings would have been

different, Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); Williamson v. Ward, 110

F.3d 1508, 1514 (10th Cir. 1997). Because defendant has alleged his counsel failed to

adequately raise an issue on appeal, we examine the merits of the issue. See United

States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995). If the issue is without merit, there is

likewise no merit to defendant’s ineffective assistance claim. Id. at 392-93.

       In the direct appeal, defendant’s counsel challenged the sufficiency of the evidence

to support the CCE conviction. Characterizing the challenge as “perfunctory,” this court

concluded the evidence was “overwhelming” and specifically noted “the evidence,

viewed in the light most favorable to the government, supported the jury’s finding that

Defendant was the organizer, supervisor, or manager of eight other individuals.” 14 F.3d


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at 1472.

       Defendant now contends counsel should have done a better job of raising the issue

and, specifically, should have “appropriately briefed the issue and made sufficient

references to the record to support his argument.” Defendant’s pro se br. at 7. Defendant

argues if counsel had done so, this court “would not have been able to conclude” there

was sufficient evidence to support the CCE conviction. Id.

       We conclude defendant’s arguments are without merit. Even if counsel had done

everything defendant claims he should have done, we are convinced the CCE conviction

would have been affirmed. As noted, this court reviewed the record on appeal and

concluded the evidence supporting defendant’s CCE conviction was “overwhelming.” 14

F.3d at 1472. Additional arguments or references by counsel simply would not have

changed this conclusion.



District court’s authority to depart below statutory minimum sentence

       Defendant argues the district court erred during resentencing in concluding it

lacked authority to depart below the twenty-year statutory minimum sentence. In United

States v. Campbell, 995 F.2d 173, 175 (10th Cir. 1993), we held a district court may

depart below the statutory minimum sentence established by Congress “only to reflect

substantial assistance by the defendant.” Because this narrow exception has no

application to this case, the district court correctly concluded there was no basis for


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departure.



District court’s calculation of drug quantity for sentencing purposes

       Defendant contends the district court erred in calculating the amount of drugs

attributable to him for sentencing purposes. Although the presentence report estimates

defendant distributed “a minimum of 60 kilograms of cocaine” during the course of the

CCE, that estimate was not used in determining defendant’s sentence. Accordingly, any

error in the estimated amount is irrelevant.

                                               III.

       The judgment of the district court is AFFIRMED. Counsel’s motion to withdraw

is GRANTED. The mandate shall issue forthwith.

                                                      Entered for the Court

                                                      Mary Beck Briscoe
                                                      Circuit Judge




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