                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               November 27, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 11-4147
          v.                                             (D. Utah)
 RICARDO FRANCISCO                           (D.C. No. 2:09-CR-00836-CW-1)
 RODRIGUEZ-HERNANDEZ,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.


      Defendant Ricardo Francisco Rodriguez-Hernandez pleaded guilty to one

count of possession with intent to distribute 500 grams or more of a mixture or

substance containing methamphetamine. See 21 U.S.C. § 841(a)(1). The United

States District Court for the District of Utah sentenced him to 96 months’




      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
imprisonment, followed by 60 months of supervised release. Defendant timely

appealed.

      Discerning no meritorious issues for appeal, defense counsel submitted an

Anders brief and a motion for leave to withdraw. See Anders v. California, 386

U.S. 738 (1967). As required by Anders, Defendant was provided with a copy of

the brief and the clerk of this court sent him a letter informing him that he could

respond with any meritorious arguments within 30 days. See id. at 744 (defendant

must be given a copy of the Anders brief and provided time to respond).

Defendant never responded. Believing the appeal to be wholly frivolous, the

United States chose not to submit a brief. We have jurisdiction under 28 U.S.C.

§ 1291. After independently examining the record, we agree with defense counsel

that there are no nonfrivolous grounds for appeal. Accordingly, we grant the

motion for leave to withdraw and dismiss the appeal.

I.    DISCUSSION

      Defense counsel raises two issues that might arguably support an appeal.

Both are frivolous. First, because the district court provided Defendant with the

right to speak before adjudging the sentence, it did not deny him his right to

allocute. See United States v. Mendoza-Lopez, 669 F.3d 1148, 1152 (10th Cir.

2012). Second, we cannot review any ineffective-assistance-of-counsel claim

because there are no special circumstances warranting departure from our general




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rule that such claims should not be considered on direct appeal. See United States

v. Galloway, 56 F.3d 1239, 1240–41 (10th Cir. 1995) (en banc).

      We find no other nonfrivolous basis for appeal in the record. The district

court did not err in accepting Defendant’s guilty plea. Defendant signed a plea

agreement that informed him of the elements of his offense and the maximum

possible penalty. In it he admitted the underlying facts and stated that he entered

into the plea only “after full and careful thought; with the advice of counsel; and

with a full understanding of my rights, the facts and circumstances of the case and

the consequences of the plea.” R., Vol. 1 at 21. At the plea hearing Defendant

testified that he understood the plea agreement and the charges against him.

Before accepting the plea, the district court confirmed the factual basis of the

plea, instructed Defendant that the maximum penalty was life imprisonment, and

otherwise adequately ensured the “plea was knowing, intelligent, and voluntary,”

United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998).

      Also, the district court accurately calculated the Guidelines range and

imposed a reasonable sentence. Defendant admitted that he possessed 873.7

grams of actual methamphetamine, so his base offense level was 36. See USSG

§ 2D1.1(c)(2) (2010). That level was decreased by two levels because he met the

criteria in § 5C1.2(a) (which are identical to those in 18 U.S.C. § 3553(f)(1)–(5)),

see id. § 2D1.1(b)(11), and by three additional levels because of his acceptance of

responsibility, see id. § 3E1.1, resulting in a total offense level of 31. Defendant

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requested an offense-level reduction for minor or minimal participation. See

§ 3B1.2. But the court did not clearly err in finding that he had not established

eligibility for the reduction. With a criminal-history score of zero, Defendant had

a criminal-history category of I, see id. § 5A, resulting in a Guidelines range of

108 to 135 months, see id. Although the statutory minimum sentence for

Defendant’s offense is 120 months, see 21 U.S.C. § 841(b)(1)(A), the district

court was required to impose a sentence without regard to the statutory minimum

because Defendant met the criteria set forth in 18 U.S.C. § 3553(f)(1)–(5). See

also USSG § 5C1.2(a). Based on “the nature and circumstances of the offense”

and Defendant’s “history and characteristics,” 18 U.S.C. § 3553(a)(1), the district

court varied downward from the Guidelines range, imposing a sentence of 96

months. Because the district court correctly calculated the Guidelines range and

imposed a sentence below it, Defendant’s sentence is presumptively reasonable,

see United States v. Damato, 672 F.3d 832, 848 (10th Cir. 2012), and nothing in

the record suggests that the presumption could be overcome.

II.   CONCLUSION

      We GRANT the motion for leave to withdraw and DISMISS the appeal.


                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge


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