                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                 December 19, 2013
                          UNITED STATES COURT OF APPEALS
                                                       Elisabeth A. Shumaker
                                                                     Clerk of Court
                                       TENTH CIRCUIT


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                           No. 13-3171
 v.
                                                (D.C. No. 6:10-CR-10152-EFM-2)
                                                            (D. Kan.)
 JUAN CARLOS GUTIERREZ
 GOMEZ,

              Defendant - Appellant.


                                  ORDER AND JUDGMENT *


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


          This appeal arrives in a doubtful procedural posture, but even overlooking

those complications and proceeding to the merits we cannot lawfully afford any

relief.

          After Juan Carlos Gutierrez Gomez pleaded guilty to participating in a

methamphetamine distribution conspiracy, the district court determined the



          *
         After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f) and 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judgment is not binding precedent except under the doctrines of law of the case,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.
appropriate advisory guideline range was 87 to 108 months, and it proceeded to

impose a 98-month sentence, right near the middle of that range. On appeal, Mr.

Gutierrez Gomez’s attorney filed an Anders brief exploring various potential

avenues for appeal but suggesting none was legally viable. For his part, Mr.

Gutierrez Gomez filed a brief raising a number of arguments all his own. This

court found no plausible ground for appeal in either set of briefs and granted

counsel’s request to withdraw. United States v. Gutierrez, 506 F. App’x 714

(10th Cir. 2012).

      Unsatisfied with this result, Mr. Gutierrez Gomez proceeded to file various

post-judgment motions in the district court, including a motion for a reduction of

his sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court denied these

motions and it is its denial of the § 3582(c)(2) motion that we understand Mr.

Gutierrez Gomez to be pursuing now before us.

      The government doesn’t dispute our statutory authority to hear this appeal

but argues Mr. Gutierrez Gomez waived his right to pursue it, noting that his plea

agreement expressly “waives any right to file and prosecute an appeal of the

sentence imposed which is within the guideline range determined appropriate by

the Court.” R. vol. 1 at 33. Surely this appeal waiver applies to the present

dispute, the government points out, because the district court imposed a mid-

range sentence and the language of the plea agreement and transcript of the

colloquy both suggest Mr. Gutierrez Gomez waived his appellate rights

                                       -2-
knowingly and voluntarily. See United States v. Hahn, 359 F.3d 1315, 1325 (10th

Cir. 2004) (en banc) (per curiam). On this record, there’s simply no indication

that the appellate waiver cannot be enforced without causing “a miscarriage of

justice.” See id. at 1327.

      Even so, the government’s past litigation decisions give us some pause.

When Mr. Gutierrez Gomez brought his direct appeal, the government made no

effort to enforce the appellate waiver. In fact, that’s why we didn’t enforce the

waiver and dismiss the appeal but addressed it on the merits. Gutierrez, 506 F.

App’x at 716 n.1 (assuming the government “has waived any right to enforce

[the] appellate waiver”). The government, we have repeatedly explained, “may

be deemed itself to waive a defendant’s appeal waiver” when it doesn’t try to

enforce the waiver in its appellate brief or through a separate motion. United

States v. White, 584 F.3d 935, 947 n.5 (10th Cir. 2009). To be sure, the

government didn’t venture any arguments in Mr. Gutierrez Gomez’s direct appeal.

Instead of submitting its own brief, the government evidently chose to rely on the

Anders brief from defense counsel, which argued Mr. Gutierrez Gomez had no

nonfrivolous grounds for appeal. But the government did write a letter to this

court notifying us it wouldn’t be submitting a brief, and it easily could have

insisted on enforcing the appellate waiver then. See United States v. Contreras-

Ramos, 457 F.3d 1144, 1145 (10th Cir. 2006) (“[W]here the government

explicitly cites an appeal waiver in a letter to the Court in response to an Anders

                                         -3-
brief, the waiver is not waived . . . .”). Given all this, we harbor some doubts

about the government’s right to invoke the appellate waiver now — doubts the

government’s brief hasn’t even tried to dispel.

       Worrying (without deciding) whether the government waived Mr. Gutierrez

Gomez’s waiver, we think it prudent to address his claims on their merits, as the

district court did.

       Mr. Gutierrez Gomez argues, first, that the district court failed to take into

account his cooperation with law enforcement. In his view, the court should have

considered the extent of his cooperation under 18 U.S.C. § 3553(a) even though

the government didn’t ask the court to do so pursuant to sentencing guideline

§ 5K1.1. Cf. United States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006) (finding

that § 3553(a)’s mention of “the history and characteristics of the defendant”

encompasses “the history of a defendant’s cooperation”). But whatever other

problems may confront Mr. Gutierrez Gomez here (including whether this

question is properly raised in a § 3582(c) motion when it wasn’t raised on direct

appeal), the record simply belies it. The district court expressly found he had

played “games” with law enforcement instead of “being forthright and

straightforward.” R. vol. 3 at 230-31. Indeed, the district court rated Mr.

Gutierrez Gomez “less than cooperative with law enforcement.” Id. at 232-33.

Plainly, the district court considered just the issue Mr. Gutierrez Gomez charges it

with overlooking. Neither does Mr. Gutierrez Gomez give us any persuasive

                                         -4-
reason to doubt the district court’s factual finding on that issue, let alone any

reason to think it clearly erroneous. See, e.g., United States v. Kristl, 437 F.3d

1050, 1054 (10th Cir. 2006) (“[I]n considering the district court’s application of

the Guidelines, we review factual findings for clear error . . . .”).

      Separately, Mr. Gutierrez Gomez protests the district court’s calculation of

his sentence range, but he seems to be relying on an outdated copy of the

guidelines. He faults the court for not distinguishing between

L-methamphetamine and D-methamphetamine, but that distinction hasn’t been

legally significant under the guidelines since 1995. United States v. Glover, 97

F.3d 1345, 1347 n.2 (10th Cir. 1996). He also maintains that the quantity of pure

or “actual” methamphetamine involved in his case (195.84 grams) establishes a

base offense level of 32. But that hasn’t been true since the guidelines’ 2000

amendments, which dropped the minimum amount of actual methamphetamine

needed for base offense level 34 from 300 to 150 grams. U.S. Sentencing

Guidelines Manual app. C, vol. II, amend. 594. As the district court correctly

determined, Mr. Gutierrez Gomez’s base offense level for conspiring to distribute

195.84 grams of actual methamphetamine is 34. Id. § 2D1.1(c)(3).

      Mr. Gutierrez Gomez’s motion to proceed in forma pauperis is denied. The

district court’s order denying the § 3582(c) motion is affirmed. Mr. Gutierrez




                                          -5-
Gomez is reminded of his obligation to pay the filing fee in full.



                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




                                        -6-
