*

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order and judgment is not binding precedent, except under the doctrines of law of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

FILED

United States Court of Appeals

Tenth Circuit

July 16, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NICOLE PULLER,

Defendant-Appellant.

No. 07-1397

(D.C. No. 06-CR-244-EWN)

(D. Colo.)

ORDER AND JUDGMENT*

Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.

Defendant-Appellant Nicole Puller pled guilty to (1) violating 18 U.S.C. §§

1343 and 2, Wire Fraud and Aiding and Abetting, and (2) violating 18 U.S.C. §§

1957 and 2, Money Laundering and Aiding and Abetting. Puller now appeals,

raising issues with respect to her sentence as well as the district court’s denial of

her motion to suppress. Puller’s counsel filed a brief pursuant to Anders v.
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California, 386 U.S. 738 (1967), and moved for leave to withdraw; Puller

submitted a supplemental brief on her own behalf. Having considered each, we

grant counsel’s motion to withdraw and dismiss this appeal. 

I. BACKGROUND 

Most generally, Puller was one of seven people indicted for participating in

a mortgage fraud scheme. As stipulated in Puller’s plea agreement, the conduct

that gave rise to her indictment occurred in the fall of 2004. It was at that time

that Puller, having assumed the identity of Shanae Garner, purchased residential

properties using a fake Colorado driver’s license along with the social security

number of the true Shanae Garner. The lenders that financed Puller’s purchases

were unaware of her true identity and were similarly unaware of the many false

representations that Puller made on each of her loan applications. 

Puller moved to suppress much of the evidence that the government had

obtained against her. The district court denied her motion, and thereafter, Puller

entered into an unconditional plea agreement with the government under which

she agreed to plead guilty to two charges: (1) violating 18 U.S.C. §§ 1343 and 2,

Wire Fraud and Aiding and Abetting, and (2) violating 18 U.S.C. §§ 1957 and 2,

Money Laundering and Aiding and Abetting. For its part, the government agreed

(1) not to pursue additional charges against Puller, (2) to move to dismiss the

remaining charges against her, (3) to move for a one-point offense level reduction

pursuant to U.S.S.G. § 3E1.1(b), and (4) to recommend a sentence “no higher than
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the mid-range of the applicable sentencing guideline range.” Under the explicit

terms of the plea agreement, however, “[t]he Government intend[ed] to argue that

[Puller] [was] not entitled to any reduction in sentence for cooperation.” 

Having accepted Puller’s guilty plea, the district court determined that her

total offense level was 17 and that her criminal history category was III. Puller’s

total offense level coupled with her criminal history category resulted in a

guideline sentence range of 30 to 37 months’ imprisonment. The district court

sentenced her at the middle-end of that range: 34 months. In doing so, the court

explicitly rejected Puller’s argument that she should receive a lower sentence

based on her cooperation with authorities. Puller now appeals.

II. DISCUSSION

In Anders, the Supreme Court held that “if counsel finds his case to be

wholly frivolous, after a conscientious examination of it, he should so advise the

court and request permission to withdraw.” 386 U.S. at 744. This court “must

then conduct a full examination of the record to determine whether defendant’s

claims are wholly frivolous. If [we] conclude [ ] after such an examination that

the appeal is frivolous, [we] may grant counsel’s motion to withdraw and may

dismiss the appeal.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir.

2005).

Counsel’s brief appears to identify two potential issues for appeal: (1) the

government’s refusal to file a substantial-assistance motion pursuant to U.S.S.G.
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§ 5K1.1, and (2) the reasonableness of Puller’s sentence. In addition to counsel’s

brief, Puller has filed a supplemental brief asserting that the government should

have filed a § 5K1.1 motion on her behalf, and that the district court erred in

denying her motion to suppress. Along with this brief, Puller has filed a motion

for resentencing pursuant to 18 U.S.C. § 3582(c)(2), which purports to have been

filed in “The United States District Court for the Tenth Circuit District of

Colorado.” Each of these matters will be considered in turn.

A. U.S.S.G. § 5K1.1

Pursuant to U.S.S.G. § 5K1.1, a sentencing court may depart from the

guidelines “[u]pon motion of the government stating that the defendant has

provided substantial assistance in the investigation or prosecution of another

person who has committed an offense....” In this case, the government did not

file such a motion on Puller’s behalf, and Puller’s counsel asserts that there is no

non-frivolous ground on which Puller may challenge this decision. Having

undertaken a full examination of the record, as required by Anders, we agree.

“[T]his court can review the government’s refusal to file a substantialassistance motion only if that decision was based on an unconstitutional motive or

was not rationally related to a legitimate government end.” United States v.

Dominguez Beltran, 184 Fed. App’x 799, 802 (10th Cir. 2006) (unpublished)

(citing Wade v. United States, 504 U.S. 181, 185-86, (1992); United States v.

Duncan, 242 F.3d 940, 946 (10th Cir. 2001)). Based on our review of the record,
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we agree with Puller’s counsel that neither exception is at issue here. Indeed, as

Puller’s counsel points out, no claim was ever raised below under the

“unconstitutional motive” exception. 

In her supplemental brief, however, Puller somewhat ambiguously contends

that the government violated the Equal Protection Clause when it filed § 5K1.1

motions with respect to two of her co-defendants, but declined to do so in her

case. This argument was not raised below, and “[w]hile we have reviewed

sentencing errors that were not raised in the district court under a plain error

standard, plain error review is not appropriate when the alleged error involves the

resolution of factual disputes.” United States v. Easter, 981 F.2d 1554, 1555-56

(10th Cir. 1992) (citation omitted). Puller’s “suggestion regarding the

government’s motive for failing to bring a motion raises the factual issue of, not

only the government’s motive, but whether [Puller] in fact provided substantial

assistance. Accordingly, because [Puller] failed to raise this fact-dependent issue

in the court below, [she] has waived it on appeal, and plain error review does not

apply.” Id. at 1556. We therefore decline to consider Puller’s argument. 

B. Puller’s Sentence 

Puller’s counsel asserts that there is no non-frivolous ground on which

Puller may challenge either the procedural or substantive reasonableness of her

sentence. Having engaged in a full examination of the record, as required by

Anders, we agree. The district court properly calculated Puller’s guideline range
1

 Each of these circumstances is present in this case. 

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sentence and considered Puller’s request for a downward departure, together with

the § 3553(a) sentencing factors, and the uncontested facts in the presentence

report. Thereafter, the district court sentenced Puller within the advisory

guideline range, a sentence that is entitled to a presumption of reasonableness.

United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). Based on our

review of the record, we find no basis on which this presumption may be

overcome. 

In her supplemental brief, however, Puller contends that § 2B1.1 provides

for a base offense level of 4 and therefore that the district court erred in

determining that her base offense level was 7. We disagree. Section 2B1.1(a)(1)

specifically provides that a defendant’s base offense level shall be “7, if (A) the

defendant was convicted of an offense referenced to this guideline; and (B) that

offense of conviction has a statutory maximum term of imprisonment of 20 years

or more....”1

 In all other circumstances, the base offense level is provided for

under § 2B1.1(a)(2), which indicates that a defendant’s offense level shall

otherwise be 6. It is not clear on what basis Puller believes her base offense level

should be 4. As such, we reject her argument. 

C. Motion to Suppress 

In her supplemental brief, Puller contends that the district court erred in

denying her motion to suppress. Unfortunately for Puller, she entered an
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unconditional guilty plea, which “results in the waiver of all nonjurisdictional

defenses.” United States v. Robertson, 45 F.3d 1423, 1434 (10th Cir. 1995). And

because there is no indication in the record that Puller’s guilty plea was either

unknowing or involuntary, Puller’s argument regarding her motion to suppress

cannot form the basis of an appeal. 

D. Motion for Resentencing 

As a final matter, Puller attached to her supplemental brief a motion for a

reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). This motion was

purported to have been filed in the “United States District Court for the Tenth

Circuit District of Colorado.” Assuming that Puller in fact intended to file the

motion with this court, we dismiss it without prejudice. This court does not have

authority to resentence defendants; Puller’s motion must be filed with the United

States District Court for the District of Colorado. 

III. CONCLUSION

Based on the foregoing, we GRANT counsel’s motion to withdraw and

DISMISS this appeal. Puller’s motion for a reduction in sentence pursuant to 18

U.S.C. § 3582(c)(2) is dismissed without prejudice. 

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge