                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  April 4, 2008
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 07-2157
          v.                                             (D. of N.M.)
 MARCIAL MENDEZ,                                  (D.C. No. CR-06-491-JC)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **


      In February 2006, Marcial Mendez entered the United States at a

Department of Transportation Port of Entry in Gallup, New Mexico. The tractor

trailer he was riding in was selected for inspection by New Mexico Motor

Transportation Division officers. The officers discovered 447 pounds (163.6

kilograms) of cocaine in the trailer.



      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      Mendez pleaded guilty to conspiracy to possess with the intent to distribute

five kilograms or more of cocaine in violation of 21 U.S.C. § 846, and possession

with intent to distribute five kilograms or more of cocaine in violation of 21

U.S.C. § 831(a)(1) and § 841(b)(1)(A). The district court sentenced him to a term

of imprisonment of 135 months followed by a supervised release term of 5 years.

      After Mendez filed a timely notice of appeal, his counsel submitted an

Anders 1 brief, and moved to withdraw his representation. Mendez did not file any

materials on his own behalf. Because we agree that Mendez has no meritorious

claims on appeal, we GRANT counsel’s request to withdraw and AFFIRM

Mendez’s sentence.

                                            I.

      We review a federal criminal sentence for reasonableness, giving deference

to the district court under “the familiar abuse-of-discretion standard.” Gall v.

United States, 128 S. Ct. 586, 594 (2007); see United States v. Smart, ___ F.3d

___, No. 06-6120, 2008 WL 570804, at *4 (10th Cir. Mar. 4, 2008) (noting that it

is now “well settled that we review a district court’s sentencing decisions solely

for abuse of discretion”). Reasonableness “has both procedural and substantive

components.” United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007); see

Gall, 128 S. Ct. at 597 (noting that a reviewing court “must first ensure that the



      1
          Anders v. California, 386 U.S. 738 (1967).

                                            -2-
district court committed no significant procedural error” and then it should

“consider the substantive reasonableness of the sentence”).

                                         A.

      We first review Mendez’s sentence for procedural reasonableness. The

district court correctly calculated Mendez’s sentence under the United States

Sentencing Guidelines (USSG), except for an error that favored the defendant.

The court properly decided the base offense level was 38 because the offense

involved 150 kilograms or more of cocaine. USSG § 2D1.1(c)(1). The court,

however, mistakenly adopted the Pre-Sentence Report’s recommendation to

subtract two levels based on § 2D1.1(b)(9)’s cooperation provision—a mistake

that resulted in a lower guideline range for Mendez. 2

      The court also awarded Mendez a three-level reduction for accepting

responsibility for the offense, USSG § 3E1.1(a)–(b), which resulted in a total

offense level of 33. Mendez scored a criminal history category I because he had


      2
         Under this section, if the defendant meets the criteria set forth in
subdivisions one through five of § 5C1.2(a), then the defendant’s level should be
decreased by two. In order to qualify for this departure, the defendant must
truthfully provide the government all information and evidence related to his
crime. See id. § 5C1.2(a)(5). The court erroneously concluded that Mendez
satisfied this requirement, despite Mendez’s concession that he had not fully
cooperated with the government. For example, during the sentencing hearing,
Mendez told the judge “I ask forgiveness from the government and the U.S.
Attorney for not having given them all of the information that they needed.” R.,
Vol. IV at 8. Despite this incorrect application of the Guidelines, the government
did not object at the sentencing hearing and does not challenge this finding on
appeal.

                                         -3-
no prior offenses. Based on an offense level of 33 and criminal history category

I, the court properly concluded the advisory guideline imprisonment range was

135 to 168 months. It then sentenced Mendez to 135 months of imprisonment and

5 years of supervised release.

      In the Anders brief, Mendez’s counsel addressed three potential procedural

errors regarding (1) the substantial assistance departure provision, (2) the minor

role adjustment provision, and (3) other important Guideline factors.

      1. Substantial Assistance Departure

      At sentencing, Mendez argued the court should apply the substantial

assistance departure provision. Under § 5K1.1, a court may only apply this

provision if the government makes a motion “stating that the defendant has

provided substantial assistance in the investigation or prosecution of another

person who has committed an offense.” United States v. Vargas, 925 F.2d 1260,

1267 (10th Cir. 1991). The government did not file such a motion. Some case

law in our circuit also suggests a court may grant this departure if a prosecutor

acted in bad faith in refusing to file the motion. See United States v. Kovac, 23

F. App’x 931, 937–38 (10th Cir. 2001) (describing conflicting case law on this

issue). It is unnecessary to resolve this intra-circuit conflict in this case because

nothing in the record indicates the prosecutors acted in bad faith. Therefore, the

district court properly declined to grant Mendez a substantial assistance

departure.

                                          -4-
      2. Minor Role Adjustment

      Mendez also argued at sentencing that he qualified for a minor role

adjustment under USSG § 3B1.2(b). Under this provision, the court should

decrease the defendant’s offense level by two “[i]f the defendant was a minor

participant in any criminal activity.” Id. A defendant’s role in an offense is a

finding of fact which we review for clear error. United States v. James, 157 F.3d

1218, 1219 (10th Cir. 1998). The defendant bears the burden to show by a

preponderance of the evidence that he was a minor participant. United States v.

Santistevan, 39 F.3d 250, 254 (10th Cir. 1994).

      Mendez argued that he qualified for this departure because he was merely a

transportation courier. Even if Mendez was simply a courier, however, this does

not mean he automatically qualifies for a minor role adjustment. See United

States v. Martinez, 512 F.3d 1268, 1276 (10th Cir. 2008). 3 The district court

nonetheless concluded Mendez played a more substantial role in the drug

operation than simply transporting the cocaine. As the sentencing judge

explained, “I find the quantity of the cocaine with which the defendant was

entrusted, the fact that the cocaine was found in his personal tractor-trailer, and

      3
        “[W]e have consistently refused to adopt a per se rule allowing a
downward adjustment based solely on a defendant’s status as a drug courier.
[D]rug couriers are an indispensable component of drug dealing networks. To
debate whether couriers as a group are less culpable . . . [is] akin to the old
argument over which leg of a three-legged stool is the most important leg.”
United States v. Martinez, 512 F.3d 1268, 1276 (10th Cir. 2008) (internal
quotation marks and citations omitted).

                                         -5-
his own rendition of events . . . clearly indicate the defendant was more than

merely a courier.” R., Vol. IV at 11. Because these findings of fact are

reasonable inferences based on the evidence in the record, the court did not err in

denying this departure.

      3. Failure to Consider Other Factors

      Finally, the Anders brief suggests Mendez’s sentence could be unreasonable

because the district court failed to account for his remorse and lack of criminal

history, status as the primary breadwinner for his family, and favorable opinion in

the community. Contrary to Mendez’s assertions, the court did favorably account

for his remorse and lack of criminal history. See R., Vol. II at 7–8, ¶¶ 26, 30.

      With regards to his status as a breadwinner, the USSG explicitly states

“family ties and responsibilities are not ordinarily relevant in determining

whether a departure may be warranted.” USSG § 5H1.6. 4 The district court did

      4
       Familial responsibilities may be taken into account under the following
circumstances:

      (i) The defendant’s service of a sentence within the applicable
      guideline range will cause a substantial, direct, and specific loss of
      essential caretaking, or essential financial support, to the defendant’s
      family.

      (ii) The loss of caretaking or financial support substantially exceeds
      the harm ordinarily incident to incarceration for a similarly situated
      defendant. For example, the fact that the defendant’s family might
      incur some degree of financial hardship or suffer to some extent from
      the absence of a parent through incarceration is not in itself sufficient
      as a basis for departure because such hardship or suffering is of a
                                                                       (continued...)

                                         -6-
not clearly err in refusing to grant Mendez a departure based on his breadwinner

status; nothing in the record indicates the impact on Mendez’s family will be

substantially greater than the impact incarceration would impose on other

similarly situated families. Id. cmt. 1(B)(ii.). Mendez did not convincingly

explain why a small departure in the length of his sentence would effectively

address the loss of family support. Id. cmt. 1(B)(iv.). The district court therefore

properly applied the Guidelines in fashioning a sentence tailored to Mendez and

his personal characteristics.

      Finally, the district court did not err by denying Mendez’s request to grant

a departure based on the favorable community opinion of him. Such a decision is

not procedural error because this factor is not listed in the USSG. Whether the

decision constitutes substantive error will be addressed in the next part.




      4
       (...continued)
      sort ordinarily incident to incarceration.

      (iii) The loss of caretaking or financial support is one for which no
      effective remedial or ameliorative programs reasonably are available,
      making the defendant’s caretaking or financial support irreplaceable
      to the defendant’s family.

      (iv) The departure effectively will address the loss of caretaking or
      financial support.

USSG § 5H1.6. cmt. 1(B).

                                         -7-
                                         B.

      Post-Booker, 5 we review the length of a sentence for substantive

reasonableness. See United States v. Hamilton, 510 F.3d 1209, 1217–18 (10th

Cir. 2007) (“In evaluating the substantive reasonableness of a sentence, we ask

whether the length of the sentence is reasonable considering the statutory factors

delineated in 18 U.S.C. § 3553(a).”). “[W]e accord a properly calculated

Guidelines sentence a presumption of substantive reasonableness.” United States

v. Hernandez, 509 F.3d 1290, 1298 (10th Cir. 2007); see Gall, 128 S. Ct. at 597

(“If the sentence is within the Guidelines range, the appellate court may, but is

not required to, apply a presumption of reasonableness.”).

      The district court has a wide range of discretion in striking a balance

among the § 3553(a) factors. See Smart, 2008 WL 570804, at *7 (“We may not

examine the weight a district court assigns to various § 3553(a) factors . . . as a

legal conclusion to be reviewed de novo.”). Nothing in the district court’s

analysis disturbs the presumption of reasonableness or suggests an abuse of

discretion.

      Mendez’s counsel argued that the district court should grant a variance

based on the community’s positive opinion of Mendez. Such evidence is perhaps

relevant for evaluating “the history and characteristics of the defendant.”

18 U.S.C. § 3553(a)(1). The record indicates the court considered this evidence,

      5
          United States v. Booker, 543 U.S. 220 (2005).

                                         -8-
but concluded it did not justify a variance. Due to the broad discretion courts are

granted to consider § 3553(a) factors, we cannot conclude that such a decision

constitutes an abuse of discretion.

                                        II.

      After a careful review of the record, we conclude Mendez has no

meritorious claims on appeal. We therefore GRANT counsel’s request to

withdraw and AFFIRM Mendez’s sentence.



                                                    Entered for the Court,


                                                    Timothy M. Tymkovich
                                                    Circuit Judge




                                         -9-
