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 federal drug crime and was sentenced to 120 

months in prison and five years of supervised release. He appeals his conviction and 

sentence. His appointed counsel has submitted an Anders brief stating the appeal 

presents no non-frivolous grounds for reversal. After careful review of the record, we 

agree. Exercising jurisdiction under 28 U.S.C. § 1291, we grant counsel’s motion to 

withdraw and dismiss the appeal. 

 *

 This order and judgment is not binding precedent, except under the doctrines of 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 28, 2020

Christopher M. Wolpert 

Clerk of Court
2 

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 distribute and (2) possessing with intent to distribute more than 400 

grams of a mixture containing fentanyl and more 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 controlled substances evidence. Before the 

motion could be heard, he pled guilty to the second charge without a plea agreement, 

acknowledging he faced a 120-month statutory 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 parties agreed to an 84-month sentence. 

Mr. Grijalva then moved to withdraw his plea, arguing his mandatory minimum 

sentence would be disproportionate to Mr. Scott’s expected sentence. The district court 

denied the motion, concluding Mr. Grijalva 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 range was 121 to 151 months. 

 Mr. Grijalva objected to the base offense 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. Grijalva to proceed pro se. 

Mr. Grijalva submitted a pro se opening brief, 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 containing 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 sentence. 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 laboratory did not remove 

its packaging due to safety concerns. It estimated the mixture’s net weight by calculating 

the weight of the packaging on the mixture containing 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 denied 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 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) (citation 

omitted). The Anders brief concluded Mr. Grijalva’s assertions of error lack merit and 

otherwise identified no non-frivolous 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 permission to withdraw. That 

request must, however, be accompanied by a brief referring to 

anything in the record that might arguably support the appeal. 

. . . [T]he court—not counsel—then proceeds, after a full 

examination of all the proceedings, 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 the record de novo. 

See United States v. Leon, 476 F.3d 829, 832 (10th Cir. 2007) (per curiam). 

B. Analysis 

Having “conducted an independent review and examination” of the record, id., we 

discern no non-frivolous ground for appealing 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 colorable appeal issues and 

have found none. 

Motion to Suppress Evidence 

Mr. Grijalva claims in his pro se brief that the district court erred in denying his 

motion to suppress the drug 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 before he pled guilty, his unconditional guilty plea waived any 

appellate challenge. See United States v. Hawthorne, 316 F.3d 1140, 1145 (10th Cir. 

2003) (“[E]ntry of an unconditional guilty plea results in the waiver of all 

nonjurisdictional defenses.” (quotations omitted)). 

Motion to Withdraw Guilty Plea 

 Mr. Grijalva argues that the district court 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]cceptance of [r]esponsibility reduction under § 3E1.1(a).” Doc. 

10631562 at 15. Because he did not object to whether his plea was knowing in the 

district court, appellate review 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 this argument. Before entering his 

plea, Mr. Grijalva acknowledged—both in writing and during his plea hearing—that he 
6 

was foregoing his right to require the government to prove guilt beyond a reasonable 

doubt. He also acknowledged his guilty plea carried a 120-month statutory mandatory 

minimum sentence.4

 The record demonstrates his plea 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 requesting the withdrawal” of 

his plea, Fed. R. Crim. P. 11(d)(2)(B), Mr. Grijalva cannot establish on appeal that the 

district court abused its discretion when it denied his motion, see United States v. 

Sanchez-Leon, 764 F.3d 1248, 1258 (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 contain “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. Grijalva 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 reduction because he pled guilty 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 [fentanyl].” 21 U.S.C. § 841(b)(1)(A)(vi); see also 

United States v. Valdez, 225 F.3d 1137, 1143 (10th Cir. 2010) (noting even “an 

unquantifiable trace” of a controlled substance constitutes a “detectable amount” for 

purposes of § 841(b)(1)(A) (emphasis 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]esentencing is required 

only if the error was not harmless.” (quotations omitted)). Once Mr. Grijalva pled guilty 

to possessing with intent to distribute more than 400 grams of a mixture containing 

fentanyl and more than 500 grams of a mixture containing cocaine, the district court “had 

no discretion under the statute to do other than impose the mandatory minimum 

sentence.” United States v. Payton, 405 F.3d 1168, 1173 (10th Cir. 2005). Any error 

would be harmless. 

 5

 Section 3E1.1(b) provides for a one-level decrease “upon motion of the 

government stating that the defendant has assisted authorities in the investigation or 

prosecution of his own misconduct 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 sentence 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 records who have been found guilty of similar conduct”). 

We review a substantive reasonableness challenge 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 used to support the 

sentence.” Sanchez-Leon, 764 F.3d at 1267 (quotations omitted). 

 Mr. Grijalva’s challenge lacks merit. Based 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 substantively 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 received 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, accepted 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 decisions are not precedential, but may be 

cited for their persuasive value.”); see also Fed. R. App. P. 32.1. 
9 

2008) (“[D]isparate sentences are allowed where the disparity is explicable by the facts 

on the record.” (quotations omitted)).7

 

 7

 The record on appeal does not reflect why Mr. Scott’s sentence was set below the 

statutory mandatory minimum, other than it was 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 protection because he received . . . significantly 

different treatment.” Doc. 10631562 at 11. This 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 Amendment equal protection claims has always 

been precisely the same as to equal protection claims under the Fourteenth Amendment.” 

(quotations omitted)). Because Mr. Grijalva cannot 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-frivolous ground for reversal 

based on the issues raised in Mr. Grijalva’s pro se brief and addressed in the Anders brief. 

Nor have we uncovered any other non-frivolous arguments for appeal. We grant 

counsel’s motion to withdraw and dismiss the appeal. 

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge