FILED

United States Court of Appeals

Tenth Circuit

January 18, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 11-4045

(D.C. No. 2:10-CR-00802-DB-1)

(D. Utah)

v.

CRISTINO SOTO-TULA,

Defendant - Appellant.

ORDER AND JUDGMENT*

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

Defendant Cristino Soto-Tula pleaded guilty to one count of possession

with intent to distribute 50 grams or more of a mixture or substance containing

methamphetamine. See 21 U.S.C. § 841(a)(1). The United States District Court

for the District of Utah sentenced him to 108 months’ imprisonment, followed by

five years of supervised release. Defendant timely appealed. 

*

After examining the brief and 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); 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not binding precedent except under the doctrines of law of the case, res judicata,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. 
Defense counsel, finding no meritorious issue for appeal, has submitted an

Anders brief. See Anders v. California, 386 U.S. 738 (1967). Counsel provided

Defendant with a copy of the brief and the clerk of this court informed Defendant

that he had 30 days to respond and raise any arguments neglected by counsel. See

id. at 744 (defendant must be given a copy of the Anders brief and provided time

to respond). Defendant has not filed a response with this court. We have

jurisdiction under 28 U.S.C. § 1291. After conducting an independent

examination of the record, we agree with counsel’s conclusion that no

nonfrivolous basis for appeal exists. We dismiss the appeal.

I. DISCUSSION

We first observe that nothing in the record suggests that Defendant has any

meritorious ground for challenging his guilty plea. The plea agreement signed by

Defendant advised him of his rights, the charges against him, and the potential

penalty. In it he admitted the facts constituting his offense and stated that he

entered into it “after full and careful thought; with the advice of counsel; and with

a full understanding of my rights, the facts and circumstances of the case and the

consequences of the plea.” App. to Aplt.’s Opening Br. at 7. In accepting the

plea the district court verified the factual basis for the plea, informed Defendant

of the maximum possible penalty, and otherwise ensured that the plea was entered

knowingly and voluntarily. 

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Also, the district court correctly calculated the guidelines sentencing range. 

Defendant’s base offense level of 34 was appropriate for possession of 431 grams

of actual methamphetamine, the amount he admitted. See USSG § 2D1.1(a)(5),

(c)(3). That level was increased by two levels for possession of a dangerous

weapon, see id. § 2D1.1(b)(1), decreased by two levels under the safety-valve

provision, see id. § 2D1.1(b)(16), and decreased by another three levels for

acceptance of responsibility, see id. § 3E1.1, resulting in a total offense level of

31. Given Defendant’s category I criminal history, his advisory guideline range

was 108 to 135 months’ imprisonment, and the court sentenced him to 108

months. Because we see no error harmful to Defendant in the court’s calculation

of the applicable guidelines range and because the court imposed a sentence at the

very low end of that range, Defendant has no nonfrivolous ground for challenging

the reasonableness of his sentence. See United States v. Kristl, 437 F.3d 1050,

1054 (10th Cir. 2006) (per curiam) (properly calculated sentence within the

guidelines range is accorded presumption of reasonableness). 

Finally, Defendant may have a claim of ineffective assistance of counsel;

but absent exceptional circumstances not present here, we will not address such a

claim on direct appeal. See United States v. Calderon, 428 F.3d 928, 931 (10th

Cir. 2005).

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II. CONCLUSION

We DISMISS the appeal.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

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