                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS January 20, 2010

                            FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 09-8028
                                             (D.C. No. 1:08-CR-00176-WFD-4)
    JORGE ZAZUETA-CARDENAS,                              (D. Wyo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, McKAY, and BALDOCK, Circuit Judges.



         Defendant Jorge Zazueta-Cardenas appeals from his convictions and

sentence for conspiracy to distribute methamphetamine, and aiding and abetting

the distribution of methamphetamine. On appeal, defendant’s appointed counsel

filed a brief explaining that defendant wanted to raise two issues: (1) whether

there was sufficient evidence introduced at trial to support his convictions; and



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
(2) whether his sentence was “correct and appropriate under the Sentencing

Guidelines and other applicable law.” Opening Br. at 1. Rather than pressing

these arguments, however, defense counsel filed an Anders brief and requested

that he be allowed to withdraw as defendant’s attorney. See Anders v. California,

386 U.S. 738, 744 (1967) (explaining that if counsel finds a case to be “wholly

frivolous,” he may file a brief so advising the court and “request permission to

withdraw”).

      Defendant was given the opportunity to file a pro se response to counsel’s

Anders brief but we received no response from defendant. The government also

declined to file a response. Under Anders, the court must conduct “a full

examination of all the proceedings [] to decide whether the case is wholly

frivolous.” Id. After independently reviewing the record, we agree that

defendant has no non-frivolous basis to appeal his convictions or his sentence.

Counsel’s request to withdraw is therefore granted, and this appeal is dismissed.

See id. (explaining that once the court determines an appeal is “wholly frivolous”

it may “grant counsel’s request to withdraw and dismiss the appeal”).

                                         I.

      Defendant and three co-defendants were charged in a six-count Superseding

Indictment on February 25, 2008. Defendant was charged with two of the counts:

Count One - conspiracy to possess with intent to distribute, and to distribute

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846; and Count Six -

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distribution of methamphetamine and aiding and abetting the same in violation of

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Defendant’s three co-defendants all

entered guilty pleas. Defendant proceeded to trial in December 2008. After a

five-day trial, the jury returned a guilty verdict as to both of the counts in the

Superseding Indictment. The jury also specifically found that each count

involved fifty or more grams of methamphetamine. In February 2009, the district

court sentenced defendant to 63 months of imprisonment on each count, the

sentences to be served concurrently. This appeal followed.

                                          II.

      The first issue raised by defendant is whether there was sufficient evidence

to support his convictions. “We review challenges to the sufficiency of the

evidence 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 the

defendant guilty beyond a reasonable doubt.” United States v. Zunie, 444 F.3d

1230, 1233 (10th Cir. 2006) (quotation omitted).

      At trial, the government produced a number of witnesses to testify about a

drug transaction that took place on July 24, 2008. Agent Ivan Cregger of the

Wyoming Division of Criminal Investigation (DCI) testified that he was working

on an investigation involving the sale of drugs to a confidential informant (CI).

The CI contacted the DCI and indicated he had set up a deal with one of the

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co-defendant’s (referred to as “Diaz”) to purchase methamphetamine. R. Vol. 3

at 115. Agent Cregger then set up surveillance on Diaz’s house to try to find out

who was supplying him with the methamphetamine.

      On the day set for the drug sale with the CI, Agent Cregger testified that

the defendant arrived at Diaz’s house and at some point that morning the

defendant and Diaz went out to the defendant’s car. The defendant reached into

his car and pulled out a white oblong-shaped package and handed it to Diaz.

Agent Cregger further testified that later that day, Diaz, with the package in hand,

got in the car with the defendant and they drove to the truck stop where the CI

was waiting. After Diaz and the defendant were arrested, Agent Cregger testified

that he saw what the CI had obtained from Diaz—a white sock. Agent Cregger

explained that the white sock appeared to be the same object that he observed the

defendant bring to Diaz and that Diaz then brought to the truck stop.

      Ben Mayland, a police officer with the Greybull, Wyoming police

department also testified. He was at the truck stop where the drug transaction

took place. Once he received the signal from the CI that the transaction was

complete, he came out and took the defendant and Diaz into custody. He testified

that he recovered $8,100 in cash from the floor of defendant’s car and a white

sock from the CI that contained a plastic bag with approximately 4.5 ounces of

methamphetamine. The CI further confirmed the testimony of Officer Mayland

by testifying that he received a white sock from Diaz and that the defendant was

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the driver of the car from which Diaz exited. Finally, the government called an

expert in forensic chemistry, Sarah Czernwinski, to testify about the analysis she

performed on the contents of the white sock. She testified that the substance in

the plastic bag recovered from the sock was methamphetamine. She further

testified that the weight of that methamphetamine, without the plastic packaging,

was 124 grams or 4.38 ounces.

      Testifying on his own behalf, defendant denied possession of the white

sock or being involved in the distribution of methamphetamine. He admitted that

he drove to the truck stop with Diaz, but he testified that he did not know what

Diaz was doing with the CI.

      The jury weighed the conflicting evidence and found defendant guilty on

both counts. There was sufficient evidence introduced at trial to support the

jury’s verdict. Accordingly, we find no non-frivolous grounds for appeal as to

defendant’s conviction on either count.

                                          III.

      We next consider the reasonableness of defendant’s sentence, which we

review under an abuse of discretion standard. See 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 in

18 U.S.C. § 3553(a).” United States v. Geiner, 498 F.3d 1104, 1107 (10th Cir.



                                          -5-
2007). “[W]e accord a properly calculated Guidelines sentence a presumption of

substantive reasonableness.” Id.

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

defendant’s guideline level was 26 with a criminal history category of one, which

established a guideline sentencing range of 63 to 78 months. At sentencing,

defense counsel requested a downward variance to a sentence of 60 months based

on the § 3553(a) factors, including the nature and circumstances of the offense

and the history and characteristics of the defendant. Defense counsel further

noted that a co-conspirator had received a sentence of 60 months. But the

government objected to the proposed downward variance, explaining that the

co-defendant had pleaded guilty and received a lower offense level for acceptance

of responsibility, whereas defendant had not accepted responsibility and instead

had elected to go to trial. The government also noted that the amount of

methamphetamine involved in the transaction–4.5 ounces– was “not an

insubstantial amount.” R. Vol. 3 at 697.

      The district court declined to exercise its discretion to grant the downward

variance. See United States v. Gambino-Zavala, 539 F.3d 1221, 1232 (10th Cir.

2008) (affirming the district court’s decision not to grant a downward variance

and explaining that district courts have “broad discretion . . . to consider

§ 3553(a) factors”). Instead, the court found “that a sentence within the

[guideline] range is sufficient but not greater than necessary to meet the purposes

                                           -6-
of sentencing established by Congress. It affords adequate deterrence, and it

protects the community sufficiently from the conduct of this defendant.” R. Vol.

3 at 697-98. The court concluded, however, that a sentence at the mid or high end

of the guideline range–as requested by the government–was not justified based on

all of the § 3553(a) factors. The court ultimately sentenced defendant to 63

months, at the low end of the guideline range. Because defendant’s sentence is

within the guideline range, it is presumptively reasonable. See Geiner, 498 F.3d

at 1107. Based upon our review of the record, we find no non-frivolous grounds

for appeal as to the procedural or substantive reasonableness of defendant’s

sentence.

                                        IV.

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

DISMISS this appeal.

                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




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