                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 21, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 09-4022
 v.
                                               (D.C. No. 2:07-CR-00715-TS)
                                                         (D. Utah)
 DELFINO RABADAN-RIVAS,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


      A Utah jury found Delfino Rabadan-Rivas guilty of distribution of a

controlled substance (methamphetamine), possession of unregistered short-barrel

shotguns, being an illegal alien in possession of a firearm, and unlawful sale of

citizenship papers. He was sentenced to serve 120 months in prison, followed by

60 months of supervised release. Now before us, Mr. Rabadan-Rivas’s attorney

has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), advising



      *
        After examining appellant’s brief and the 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) 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order and judgment is not binding precedent except under the doctrines of law of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.
us that he discerns no colorable basis for the appeal, and seeking leave to

withdraw. After careful review and for reasons we describe below, we grant the

attorney’s motion to withdraw and dismiss this appeal.

      This case begins not with Mr. Rabadan-Rivas, but rather with Mahbad

Ghazan Fari who was arrested in Utah on drug charges. In exchange for the

dismissal of those charges, Mr. Fari agreed to cooperate with FBI officials who

were investigating Mr. Rabadan-Rivas and others for the sale of illegal drugs,

stolen passports, and firearms. During the course of the investigation, Mr. Fari

participated in “controlled buys” of methamphetamine, a stolen passport, and

unregistered sawed-off shotguns. Mr. Fari was often accompanied by an

undercover FBI agent, Agent Greg Rogers, who also participated in the

“controlled buys.” During these purchases, Mr. Fari wore a recording device.

Additionally, each of the purchased items was recovered by the government and

maintained as evidence. Based on the evidence it amassed in this way, the

government eventually brought charges against Mr. Rabadan-Rivas, securing its

convictions after a trial. Although the pre-sentence report calculated a

recommended guidelines sentencing range of 135 to 168 months, the district court

opted for a below-guidelines sentence of 120 months.

      Anders authorizes a defendant’s lawyer to seek permission to withdraw

from an appeal if, “after a conscientious examination,” the lawyer finds the

appeal frivolous. 386 U.S. at 744. To invoke Anders, the lawyer must “submit a

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brief to the client and the appellate court indicating any potential appealable

issues based on the record.” United States v. Calderon, 428 F.3d 928, 930 (10th

Cir. 2005) (citing Anders, 386 U.S. at 744). The client may then submit his own

arguments for the court’s consideration. Id. We must then “conduct a full

examination of the record to determine whether defendant’s claims are wholly

frivolous.” Id. If they are, we may grant counsel’s motion to withdraw and

dismiss the appeal. Id.

      Here, Mr. Rabadan-Rivas’s lawyer asserts there are no colorable arguments

for appeal, and his brief complies with the requirements of Anders by “referring

to anything in the record that might arguably support the appeal.” 386 U.S. at

744. First, he discusses the sufficiency of the evidence to support Mr. Rabadan-

Rivas’s conviction and, second, he discusses whether the district court imposed a

reasonable sentence. In his response to his attorney’s Anders brief, Mr. Rabadan-

Rivas has also filed a submission with us, which is written in Spanish but which

we have translated. In his papers, Mr. Rabadan-Rivas also challenges the

sufficiency of the evidence against him. 1

      Under Anders “the court – not counsel – then proceeds, after a full

examination of all the proceedings, to decide whether the case is wholly

      1
        Mr. Rabadan-Rivas also appears confused as to why he owes $3,650.00
($600.00 assessment and $3050.00 restitution). Mr. Rabadan-Rivas, however,
presents no arguments as to why the district court erred in ordering him to pay an
assessment and restitution. Additionally, our independent review of the record
reveals no error.

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frivolous.” 386 U.S. at 744. When reviewing the sufficiency of the evidence to

support a jury verdict, however, we are “limited to a determination of whether

there is substantial evidence which, when viewed in the light most favorable to

the prosecution, is sufficient to support the verdict.” Sandoval v. United States,

285 F.2d 605, 607 (10th Cir. 1960). Here, the testimony and evidence against Mr.

Rabadan-Rivas is substantial. The evidence against him includes his voice on

recordings in which he is busy negotiating the sale of the items; the items

themselves; and the testimony of those involved in the investigation, specifically

Mr. Fari and Agent Rogers who personally purchased the items from Mr.

Rabadan-Rivas. Our examination of the record reveals that the evidence was

more than sufficient to support the verdict, and thus that Mr. Rabadan-Rivas has

no colorable claim on this score.

      Our review also reveals no substantive or procedural errors that would cast

doubt upon the reasonableness of the sentence. “Procedural reasonableness

involves using the proper method to calculate the sentence. Substantive

reasonableness involves 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. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007)

(internal citation omitted). In the course of sentencing Mr. Rabadan-Rivas, the

district court considered the pre-sentence report, reviewed the applicable

guidelines, and then ultimately sentenced Mr. Rabadan-Rivas below the level

                                         -4-
recommended in the guidelines. Procedurally, the district court touched all the

bases required to issue a valid sentence and substantively we cannot say that the

result it reached, a below-guidelines sentence, was unreasonable from Mr.

Rabadan-Rivas’s perspective.

      In light of all this, we agree with Mr. Rabadan-Rivas’s attorney that there is

no non-frivolous basis for this appeal, grant counsel’s motion to withdraw, and

dismiss this appeal.


                                       ENTERED FOR THE COURT



                                       Neil M. Gorsuch
                                       Circuit Judge




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