                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 29, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 10-1326
                                              (D.C. No. 1:07-CR-00436-WDM-2)
 CRUZ CHACON, a/k/a “Chico,”                              (D. Colo.)

          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, ANDERSON and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

      Cruz Chacon pleaded guilty pursuant to a plea agreement under Federal

Rules of Criminal Procedure 11(c)(1)(B) and 11(c)(1)(C) to conspiracy to possess


      *
        This order and judgment is not binding precedent, except under the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.
with intent to distribute and to distribute methamphetamine, in violation of 21

U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(viii). The United States District Court

for the District of Colorado sentenced him to 108 months’ incarceration and five

years’ supervised release. Chacon appeals his sentence. Chacon’s appointed

counsel filed an Anders brief asserting that there are no non-frivolous claims that

could be raised on appeal, and a motion for leave to withdraw as counsel. See

Anders v. California, 386 U.S. 738 (1967). Exercising jurisdiction pursuant to 18

U.S.C. § 3742(a) and 28 U.S.C. § 1291, this court grants counsel’s motion to

withdraw and dismisses this appeal.

                                I. BACKGROUND

      Based on his participation in an organization that smuggled

methamphetamine from Mexico and distributed it in Colorado, Chacon, along

with several other individuals, was charged in a grand jury indictment in the

United States District Court for the District of Colorado with conspiracy to

possess with intent to distribute and to distribute methamphetamine, in violation

of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(viii). ROA, Vol. 1 at 33–34.

The grand jury indictment further specified that, upon his conviction, Chacon

would forfeit to the United States proceeds obtained directly or indirectly as a

result of the identified offenses pursuant to 21 U.S.C. § 853. Id. at 34–35.

      Chacon entered into a plea agreement with the government. Id. at 50–63.

Pursuant to the plea agreement, Chacon agreed to plead guilty to the charges in

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the indictment and “to provide truthful and complete cooperation to the

Government.” Id. at 50. Further, Chacon agreed to voluntarily forfeit all assets

subject to forfeiture pursuant to 21 U.S.C. § 853. Id. at 54. With regard to

Chacon’s sentence, the government agreed that it would not seek to enhance the

mandatory minimum statutory sentence of ten years’ imprisonment for a violation

of 21 U.S.C. § 841(a) pursuant to 21 U.S.C. § 851. Id. at 52.

      The government further agreed to recommend a downward departure for his

substantial assistance pursuant to U.S.S.G. § 5K1.1 if Chacon “completely

fulfill[ed] his agreement to cooperate . . . , and in so doing substantially assist[ed]

the United States in the investigation and prosecution of others.” Id. at 52–53.

While the government could not precisely identify the extent of the potential

departure because Chacon’s “full cooperation ha[d] not yet been completed,” “the

Government anticipate[d] that it w[ould] recommend a sentence of 120 months,

the mandatory minimum sentence [for the charges].” Id. at 53. Nonetheless, the

agreement specified that, pursuant to Federal Rule of Criminal Procedure

11(c)(1)(B), any departure the government requested would not be binding on the

district court. Id. Further, Chacon agreed that, to the extent he requested a

sentence below the mandatory minimum sentence, he would not seek a sentence

below 96 months’ incarceration. Id. at 54.

      Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the parties

stipulated and agreed that “the government [was] entitled to withdraw from th[e]

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agreement” in the event the district court imposed a sentence below 96 months’

incarceration. Id. Further, if the government determined Chacon failed to fulfill

his obligation to cooperate or his cooperation did not amount to substantial

assistance, the agreement specified that a sentence calculated pursuant to the

United States Sentencing Guidelines (guidelines), but not greater than 240

months’ incarceration, was reasonable. Id. Chacon was entitled to withdraw

from the agreement if the district court imposed a sentence in excess of 240

months’ incarceration. Id.

      In the plea agreement, the parties also stipulated to the relevant sentencing

factors under the guidelines. Id. at 60–61. The agreement identified the base

offense level as 38 pursuant to U.S.S.G. § 2D1.1(c)(1) “for a reasonably

forseeable [sic] drug quantity for the overall conspiracy of more than fifteen (15)

kilograms of methamphetamine.” Id. The agreement included a two-level

upward adjustment pursuant to U.S.S.G. § 2D1.1(b)(1) for “possess[ion of] a

firearm during the course of the charged drug offense.” Id. at 61. With regard to

this adjustment, the agreement indicated that Chacon reserved the right to argue

that he did not possess a firearm within the meaning of the guidelines or to

request a variance if the district court determined that he constructively possessed

any weapon. Id. The agreement then included a three-level downward

adjustment pursuant to U.S.S.G. § 3B1.2 for Chacon’s minor role in the offense,

and a three-level reduction pursuant to U.S.S.G. § 3E1.1(b) for his acceptance of

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responsibility. Id. As a result, the agreement calculated Chacon’s total offense

level as 34. Id.

      According to the agreement, Chacon’s criminal history category would

likely be VI. Id. However, because many of his “prior convictions involve[d]

relatively minor non-violent offenses,” “the parties stipulate[d] that his criminal

history substantially over-represent[ed] the seriousness of his criminal history . . .

and agree[d] that a one-level departure to Criminal History V [was] appropriate.”

Id. at 61–62. Based on the total offense level of 34 and a criminal history

category of V, the agreement identified the guidelines range as 235 to 293

months’ imprisonment. Id. at 62.

      Chacon pleaded guilty to violating 21 U.S.C. §§ 846, 841(a)(1) and

841(b)(1)(A)(viii). Id. at 74. In the presentence investigation report (PSR), the

offense level calculation mirrored that documented in the plea agreement,

resulting in a total offense level of 34. ROA, Vol. 3 at 12. The PSR calculated

Chacon’s criminal history category as V. Id. at 22. Based on the offense level of

34 and the criminal history category of V, the PSR identified Chacon’s guidelines

range as 235 to 293 months’ incarceration. Id. at 30. The PSR recommended a

sentence of 235 months’ incarceration, noting that this recommendation did not

account for any potential departure pursuant to U.S.S.G. § 5K1.1. Id. at 37.

      Chacon filed objections to the PSR. Id. at 54. He challenged certain

factual assertions, id. at 54–55; objected to the two-level upward adjustment to

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the offense level pursuant to U.S.S.G. § 2D1.1(b)(1) for possession of a firearm

during the offense, arguing that there was no factual basis for this adjustment, id.

at 56–57; contended that the minor role adjustment pursuant to U.S.S.G. § 3B1.2

should have reduced the offense level by four levels rather than three levels, id. at

57–58; and asserted that his criminal history category should have been IV,

arguing that the PSR improperly included criminal history points for certain prior

offenses, id. at 58–59. Chacon also filed a motion for downward variance and

downward departure, requesting that the district court impose a sentence of 96

months’ incarceration. ROA, Vol. 1 at 75–78.

      The government filed a motion requesting that the district court apply a

three-level reduction to Chacon’s offense level pursuant to U.S.S.G. § 3E1.1 for

his acceptance of responsibility. Id. at 79–80. The government also filed a

motion requesting that the district court depart downward from the guidelines

range pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) based on Chacon’s

substantial assistance to the government to impose a sentence of 120 months’

incarceration. Id. at 83–85.

      During the sentencing proceeding, the district court summarized the PSR’s

findings. ROA, Vol. 2 at 6–7. The district court identified the total offense level

as 34 and Chacon’s criminal history category as V, resulting in a guidelines range

of 235 to 293 months’ incarceration. Id. The district court overruled Chacon’s

objections to the PSR. Id. at 7–9. The district court then considered the

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government’s motion for a downward departure from the guidelines range. Id. at

9. After hearing arguments from Chacon and the government regarding the

appropriate sentence, the district court imposed a sentence of 108 months’

incarceration and five years’ supervised release, id. at 22–23, which was below

the guidelines range and the statutory minimum. Chacon appeals his sentence.

                                 II. ANALYSIS

      Chacon’s counsel filed an Anders brief advising the court that this appeal is

wholly frivolous and a motion requesting leave to withdraw. Pursuant to Anders,

counsel may “request permission to withdraw where counsel conscientiously

examines a case and determines that any appeal would be wholly frivolous.”

United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). Counsel is

required to submit an appellate brief “indicating any potential appealable issues.”

Id. Once notified of counsel’s brief, the defendant may then submit additional

arguments to this court. Id. This court “must then conduct a full examination of

the record to determine whether defendant’s claims are wholly frivolous.” Id.

      Although counsel’s Anders brief was served on Chacon, he did not file a

response. The government also declined to file an answer brief, explaining that

Chacon pleaded guilty pursuant to a plea agreement, that “at least” an abuse of

discretion standard of review would apply to Chacon’s arguments on appeal, and

that Chacon received a sentence less than that “thought appropriate by the

Government.”

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      Our independent review of the record confirms counsel’s assertion that

there are no non-frivolous issues presented in this appeal. This court reviews a

criminal sentence for reasonableness, under a deferential abuse of discretion

standard. United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir.

2008). This reasonableness review has both procedural and substantive

components. Id. While “procedural reasonableness focuses on whether the

district court committed any error in calculating or explaining the sentence,”

“substantive reasonableness focuses on whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth

in 18 U.S.C. § 3553(a).” United States v. Friedman, 554 F.3d 1301, 1307 (10th

Cir. 2009) (internal quotation marks omitted). When evaluating the procedural

reasonableness of a sentence, this court “review[s] the district court’s legal

conclusions regarding the Guidelines de novo and its factual findings for clear

error.” United States v. Hamilton, 587 F.3d 1199, 1219 (10th Cir. 2009). We

review the substantive reasonableness of the sentence imposed under an abuse of

discretion standard, giving substantial deference to the district court decision.

Friedman, 554 F.3d at 1307.

      At sentencing, the district court properly identified Chacon’s guidelines

range. The district court then addressed the government’s motion for a

considerable downward departure from the guidelines range pursuant to U.S.S.G.

§ 5K1.1 and 18 U.S.C. § 3553(e) based on Chacon’s substantial assistance to the

                                           8
government. Exercising its discretion, the district court granted the government’s

motion for the downward departure and departed below the guidelines range. In

fact, the district court imposed a sentence of 108 months’ incarceration, which

was below that requested by the government and the statutory minimum for

Chacon’s offenses. The sentence the district court imposed was reasoned and

reasonable.

                               III. CONCLUSION

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

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

withdraw and DISMISS Chacon’s appeal.


                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Chief Judge




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