UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSE AVIGAIL GRIJALVA, Defendant - Appellant. No. 18-6162 (D.C. No. 5:17-CR-00107-HE-2) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , McKAY , and BACHARACH , Circuit Judges.

________________ _________________ Jose Avigail Grijalva pled guilty to a fede ral drug crime and was sentenced to 120 months in prison and five year s of supervised release. He appeals his conviction and sentence. His appointed counsel has submitted an Anders brief stating the appeal presents no non-frivolous grou nds for reversal. After carefu l review of the record, we agree. Exercising jurisdiction under 28 U. S.C. § 1291, we gran t counsel’s motion to withdraw and dismiss the appeal.

* This order and judgment is not binding precedent, exce pt under the doctrines of law of the case, res judicata, and collateral es toppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 28, 2020 Christopher M. Wolpert Clerk of Court2 I. BACKGROUND
A. Guilty Plea and Motion to Withdraw Mr. Grijalva and Raymend Lee Scott, Jr. were charged with (1) conspiring to possess with intent to distribut e and (2) possessing with intent to distribute more than 400 grams of a mixture containing fentanyl and mo re than 500 grams of a mixture containing cocaine, in violation of 21 U. S.C. §§ 841(a)(1) and 846. Mr. Grijalva moved to suppress the contro lled substances evidence. Before the motion could be heard, he pled guilty to th e second charge withou t a plea agreement, acknowledging he faced a 120-month st atutory mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(A). 1 Several months later, Mr. Scott pled guilty to the first charge under a plea agreement in which the par ties agreed to an 84-month sentence. Mr. Grijalva then moved to withdraw hi s plea, arguing his mandatory minimum sentence would be disproportionate to Mr. Sco tt’s expected sentence. The district court denied the motion, concluding Mr. Grijalv a had not carried his burden on any of the criteria for plea withdrawal.
B. Sentence Mr. Grijalva’s Presentence Report (“PSR” ) calculated a base offense level of 32 based on the quantity of substances seized. The PSR applied a two-level acceptance-ofresponsibility reduction under United States Sentencing Guideline (“U.S.S.G.”)

1 Mr. Grijalva, over the advice of his counsel, rejected the government’s plea agreement offer.3 § 3E1.1(a) for an adjusted offense level of 30. Based on Mr. Grijalva’s criminal history category of III, his Guidelines ra nge was 121 to 151 months. Mr. Grijalva objected to the base offens e level, challenging the PSR’s calculation of the weight of the mixture containing fentanyl. 2 The district court overruled his objection, adopted the PSR calculations, and sentenced him to the statutory mandatory minimum of 120 months.
C. Appeal and Anders Brief Counsel for Mr. Grijalva timely appealed. We then granted counsel’s motion to withdraw and allowed Mr. Grija lva to proceed pro se. Mr. Grijalva submitted a pro se opening brie f, asserting the district court erred in (1) “denying” his motion to suppress, (2) denying his motion to withdraw his plea, (3) calculating the purity of the mixture cont aining fentanyl, (4) “not granting” an additional one-level reduction under U.S.S.G. § 3E1.1(b), and (5) imposing a sentence disproportionate to Mr. Scott’s se ntence. Doc. 10631562 at 3-16. 3 He also moved for appointment of new counsel, which we granted.

2 When weighing the mixture containing fentanyl, the laborat ory did not remove its packaging due to safety c oncerns. It estimated the mixture’s net weight by calculating the weight of the packaging on the mixture c ontaining cocaine. Mr. Grijalva objected to this method and requested a test of the mixture containing fentanyl.

3 The panel directs the Clerk to file Mr. Grijalva’s pro se opening brief received on March 1, 2019. Mr. Grijalva claims the district court de nied his motion to suppress and denied a one-level reduction under § 3E1.1(b). But the district court never ruled on his motion to suppress or received a motion for a § 3E1.1(b) reduction.4 Mr. Grijalva’s new counsel filed a brief invoking Anders v. California , 386 U.S. 738 (1967), which “authorizes counsel to re quest permission to withdraw where counsel conscientiously examines a case and determ ines that any appeal would be wholly frivolous,” United States v. Calderon , 428 F.3d 928, 930 (1 0th Cir. 2005) (citation omitted). The Anders brief concluded Mr. Grijalva’s asse rtions of error lack merit and otherwise identified no non-frivo lous issues for appeal. The clerk’s office sent the Anders brief to Mr. Grijalva and invited him to respond. Mr. Grijalva did not, despite receiving two extensions.
II. DISCUSSION
A. Standard of Review Anders provides that: [I]f counsel finds [the defendant’s] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request pe rmission to withdraw. That request must, however, be accomp anied by a brief referring to anything in the record that mi ght arguably support the appeal. . . . [T]he court—not counsel— then proceeds, after a full examination of all the proceedi ngs, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal . . . . 386 U.S. at 744. When counsel submits an Anders brief, we review th e record de novo. See United States v. Leon , 476 F.3d 829, 832 (10th Ci r. 2007) (per curiam).

B. Analysis Having “conducted an independent review and examination” of the record, id ., we discern no non-frivolous ground for appeali ng Mr. Grijalva’s conviction and sentence.5 We consider the issues Mr. Grijalva has raised in his pro se brief and addressed in the Anders brief. We also have searched the record for any other colorabl e appeal issues and have found none. Motion to Su ppress Evidence Mr. Grijalva claims in his pro se brief th at the district cour t erred in denying his motion to suppress the dr ug evidence. As the Anders brief notes, the court did not rule on the motion because Mr. Grijalva pled guilty before it could be heard. Even if there had been a suppression ruling befo re he pled guilty, his uncond itional guilty plea waived any appellate challenge. See United States v. Hawthorne , 316 F.3d 1140, 1145 (10th Cir. 2003) (“[E]ntry of an unc onditional guilty plea results in the waiver of all nonjurisdictional defenses.” (quotations omitted)). Motion to Withdr aw Guilty Plea Mr. Grijalva argues that the district cour t erred in denying his motion to withdraw his plea. He contends his guilty plea was unknowing because he did not understand that proceeding to trial would force the government to meet its burden and allow him to still be “eligible for [an] [a]ccepta nce of [r]esponsibility reduc tion under § 3E1.1(a).” Doc. 10631562 at 15. Because he did not object to whether his plea was knowing in the district court, appellate revie w would be for plain error. See United States v. PachecoDonelson , 893 F.3d 757, 759 (10th Cir. 2018). As the Anders brief shows, the record refutes th is argument. Before entering his plea, Mr. Grijalva acknowledged—both in wr iting and during his plea hearing—that he6 was foregoing his right to re quire the government to prove guilt beyond a reasonable doubt. He also acknowledged his guilty plea carried a 12 0-month statutory mandatory minimum sentence. 4 The record demonstrates his pl ea was “a voluntary and intelligent choice among the alternative courses of action” available. United States v. Muhammad , 747 F.3d 1234, 1239 (10th Cir. 2014) (quotations omitted). Because he cannot show “a fair and just reason for reque sting the withdrawal” of his plea, Fed. R. Crim. P. 11(d)(2)(B), Mr. Grijalva cannot establis h on appeal that the district court abused its discre tion when it denied his motion, see United States v. Sanchez-Leon , 764 F.3d 1248, 12 58 (10th Cir. 2014). Purity of Mixture Containing Fentanyl Mr. Grijalva argues, for the first time on appeal, that the approximately 2,600- gram mixture containing fentanyl had only “28 grams of fentanyl .” Doc. 10631562 at 9. Because the mixture did not c ontain “400 grams or more [of fentanyl],” he claims § 841(b)(1)(A)’s 120-month statutory mandatory minimum did not apply. Id . at 10. The district court did not err. Mr. Grijalv a misunderstands the applicable law. He misconstrues § 841(b)(1)(A), which does not require 400 grams or more of fentanyl for

4 Mr. Grijalva’s § 3E1.1(a) argument is misguided. He received a two-level acceptance-of-responsibility reduc tion because he pled gu ilty and did not put the government to the burden of trial. See United States v. Tom , 494 F.3d 1277, 1280 (10th Cir. 2007) (“[A] defendant ’s decision to exercise his constitutional right to trial will commonly render him ineligible for a § 3E1.1 reduction.”); U.S.S.G. § 3E1.1, cmt. 2 (noting the “rare situations” in which a defendant may demonstrate acceptance of responsibility despite proceeding to trial).7 the mandatory minimum sentence—only “400 grams or more of a mixture or substance containing a detectable amount of [fenta nyl].” 21 U.S.C. § 841(b)(1)(A)(vi); see also United States v. Valdez , 225 F.3d 1137, 1143 (10th Ci r. 2010) (noting even “an unquantifiable trace” of a controlled substa nce constitutes a “detectable amount” for purposes of § 841(b)(1)(A) (em phasis and quotations omitted )). Moreover, he admitted to possessing more than 400 grams of a mixture containing fentanyl. One-Level Reduction Under § 3E1.1(b) Mr. Grijalva contends, again for the first time on appeal, that the district court erred in refusing to apply an additional one-level reduction under U.S.S.G. § 3E1.1(b). 5 But even if Mr. Grijalva could show he was entitled to this reduction, it would not have lowered his sentence. See Sanchez-Leon , 764 F.3d at 1262 (“[R]e sentencing is required only if the error was not harmless.” (quotatio ns omitted)). Once Mr. Grijalva pled guilty to possessing with intent to distribute more than 40 0 grams of a mixture containing fentanyl and more than 500 gram s of a mixture containing cocai ne, the district court “had no discretion under the statute to do oth er than impose the mandatory minimum
sentence.” United States v. Payton , 405 F.3d 1168, 1173 (10t h Cir. 2005). Any error would be harmless.

5 Section 3E1.1(b) provides for a on e-level decrease “upon motion of the government stating that the defendant has a ssisted authorities in the investigation or prosecution of his own misc onduct by timely notifying authorities of his intention to enter a plea of guilty.” U.S.S.G. § 3E1.1(b).8 Sentence Disparity Mr. Grijalva asserts his 120-month se ntence was substantively unreasonable because it was disproportionate to Mr. Scott’s 84-month sentence. See 18 U.S.C. § 3553(a)(6) (requiring sentencing judge to consider “sentence disparities among defendants with similar record s who have been found guilty of similar conduct”). We review a substantive reasonableness ch allenge for abuse of discretion. Gall v. United States , 552 U.S. 38, 51 (2007). We look to “the district court’s consideration of the § 3553(a) factors and the sufficiency of the justifications us ed to support the
sentence.” Sanchez-Leon , 764 F.3d at 1267 (q uotations omitted). Mr. Grijalva’s challenge lacks merit. Ba sed on his guilty plea, the court could not impose a sentence lower than the statutory mandatory minimum. See Payton , 405 F.3d at 1173. His sentence was substantivel y reasonable as a matter of law. See United States v. Peralta , 784 F. App’x 588, 592 (10th Cir. 2019) (unpublished) (concluding sentence was substantively reasonable because defendant r eceived the statutory mandatory minimum). 6 Also, Mr. Scott stood in a different posture. He was not subject to the statutory mandatory minimum because he , unlike Mr. Grijalva, accep ted a plea agreement with a stipulated 84-month sentence. See United States v. Haley , 529 F.3d 1308, 1312 (10th Cir.

6 See 10th Cir. R. 32.1 (“Unpublished deci sions are not precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.9 2008) (“[D]isparate sent ences are allowed where the dispar ity is explicable by the facts on the record.” (quotations omitted)). 7

7 The record on appeal does not reflect w hy Mr. Scott’s sentence was set below the statutory mandatory minimum, other than it wa s tied to his plea agreement. A court may do so under 18 U.S.C. § 3553(e) and Rule 35(b)(4) of the Federal Rules of Criminal Procedure. Mr. Grijalva also asserts the disparity between his sentence and Mr. Scott’s “violated his constitutional right to equal protec tion because he received . . . significantly different treatment.” Doc. 10631562 at 11. Th is argument also fails. The “guarantee of equal protection under the Fifth Amendment” encompasses “a right to be free from invidious discrimination in . . . governmental activity.” Harris v. McRae , 448 U.S. 297, 322 (1980); see also Sessions v. Morales-Santana , 137 S. Ct. 1678, 1686 n.1 (2017) (The “[Supreme] Court’s approach to Fifth Amen dment equal protection claims has always been precisely the same as to equal protectio n claims under the Fourteenth Amendment.” (quotations omitted)). Because Mr. Grijalva cann ot show he and Mr. Scott were similarly situated, he cannot demonstrate the disparity between their sentences was the product of invidious discrimination. See City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 439 (1985); Barney v. Pulsipher , 143 F.3d 1299, 1312 (10th Cir. 1998) (stating a “viable equal protection claim” requires showing the individual was “treated differently from others who were similarly situated”).10 III. CONCLUSION Our independent review of the record found no non-frivo lous ground for reversal based on the issues raised in Mr. Grija lva’s pro se brief and addressed in the Anders brief. Nor have we uncovere d any other non-frivolous argu ments for appeal. We grant counsel’s motion to withdraw and dismiss the appeal.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge