FILED

United States Court of Appeals

Tenth Circuit

June 16, 2014

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOSE LIONEL GONZALES,

Defendant - Appellant.

No. 13-2125

(D.Ct. No. 2:11-CR-01587-WJ-3)

(D. N.M.)

______________________________

ORDER AND JUDGMENT*

Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior

Circuit Judge.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument.

Appellant Jose Lionel Gonzales pled guilty to one count of conspiracy to

possess with intent to distribute fifty grams or more of methamphetamine, in

*

 This order and judgment is not binding precedent except under the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.
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; and one count of aiding

and abetting in possession with intent to distribute fifty grams or more of

methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1),

(b)(1)(A). The district court sentenced him to the mandatory minimum sentences

of 120 months on both counts, to run concurrently. While Mr. Gonzales appeals

his sentences, his attorney has filed an Anders brief and a motion to withdraw as

counsel. See Anders v. California, 386 U.S. 738, 744 (1967). For the reasons set

forth hereafter, we grant counsel’s motion to withdraw and dismiss this appeal. 

I. Factual and Procedural Background

On October 18, 2010, an undercover agent met with Osvaldo Espinoza in a

parking lot in Hatch, New Mexico, regarding the purchase of several pounds of

methamphetamine. On November 27, 2010, the agent proceeded to a meeting

location in Chaparral, New Mexico, where Mr. Espinoza and another person

arrived and explained the requested methamphetamine could be picked up at a

different location in El Paso, Texas. When the agent refused to travel to El Paso,

other arrangements were made, and shortly thereafter an SUV arrived containing

a driver and Mr. Gonzales as the passenger. After a short discussion, Mr.

Espinoza asked Mr. Gonzales to show the methamphetamine to the agent, at

which time Mr. Gonzales removed a white bag from underneath his shirt and

placed it before the agent. At that point, the individuals participating in the drug

sale, including Mr. Gonzales, were arrested, and another six bindles of cocaine

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were found in Mr. Gonzales’s possession. The agent provided Mr. Gonzales his

Miranda rights, after which he admitted the cocaine was his, stating it was for his

personal use. The net weight of the drugs obtained consisted of 260.67 actual

grams of methamphetamine and 2.73 grams of cocaine. 

On February 13, 2013, Mr. Gonzales pled guilty to the methamphetamine

counts charged. During his plea hearing, the federal magistrate advised him of

his constitutional rights, and during the Rule 11 colloquy, Mr. Gonzales

acknowledged he understood the rights he was waiving in pleading guilty. Mr.

Gonzales also acknowledged he made his plea knowingly and voluntarily and

understood the charges against him. At one point, government counsel stated Mr.

Gonzales faced a “maximum” penalty of ten years in prison on both counts and “a

maximum penalty of ten years ... to [life] in prison”; thereafter, Mr. Gonzales

stated to the magistrate that he understood the penalties which applied to both

counts. Mr. Gonzales also agreed to the facts which the government stated the

evidence would show concerning the charges against him. 

After the magistrate accepted his plea agreement, a probation officer

prepared a presentence report calculating his sentence under the applicable 2012

United States Sentencing Guidelines. The probation officer thoroughly outlined

the facts supporting the charges to which Mr. Gonzales pled guilty and set his

base offense level at 31 due to the amounts of methamphetamine and cocaine for

which he was responsible. He then reduced Mr. Gonzales’s offense level two

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levels, because he was a minor participant, and an additional three levels for his

acceptance of responsibility, for a total offense level of 26. This, together with a

criminal history category of IV, resulted in an advisory sentencing range of 92 to

115 months imprisonment. However, because the mandatory minimum term of

imprisonment on both counts was ten years, the probation officer noted the

applicable Guidelines sentence was 120 months imprisonment. 

Mr. Gonzales did not object to the facts in the presentence report or

calculation of his sentence, including the requirement for imposition of the

mandatory minimum sentence, and, at sentencing, his counsel verified the

statutory minimum sentence was ten years. Accordingly, the district court

imposed 120-month concurrent sentences. 

II. Discussion

After Mr. Gonzales filed a notice of appeal, his counsel filed an Anders

motion and appeal brief, explaining a review of the record revealed no

nonfrivolous issues to appeal in this case and moving for an order permitting

withdrawal as counsel. See Anders, 386 U.S. at 744. In support of her Anders

filing, counsel notes Mr. Gonzales voluntarily entered a plea of guilty and was

sentenced to statutory, mandatory minimum sentences, leaving no issues

supporting an appeal. In an effort to find any issues of merit, counsel points to an

error during the Rule 11 colloquy in which government counsel mis-spoke and

stated the mandatory “maximum” sentence, rather than the “minimum” sentence,

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was ten years, which she also points out the magistrate failed to correct. Even

with such an error, however, she acknowledges no plain error exists, given Mr.

Gonzales was correctly informed the sentence was ten years to life and nothing in

the record suggests he would not have pled guilty had the error not occurred. In

addition, Mr. Gonzales’s counsel notes “the United States Judiciary Committee is

scheduled to meet to discuss mandatory minimum sentencing reform” and

“Attorney General Eric Holder has introduced a policy for federal prosecutors to

charge certain offenders in a manner that will avoid the minimum sentences.” 

Nevertheless, she acknowledges “[t]he policies that are set forth in the Attorney

General memorandum do not confer any rights, privileges, or benefits in any case

or proceeding” and that the district court was bound to issue a minimum sentence

of 120 months in the instant case. 

Pursuant to Anders, this court gave Mr. Gonzales an opportunity to respond

to his counsel’s Anders brief. See 386 U.S. at 744. Mr. Gonzales filed a response

contesting his conviction by disagreeing with certain facts presented in the

presentence report which he suggests incorrectly implicate him in “Direct Heavy

Weight drug activity.” While he admits he possessed the methamphetamine at

issue and was “in the wrong place at the wrong time,” he contends neither the

government nor the evidence shows he acted in a “Pattern of Compulsive agreed

Criminal Activity, with an intent to indulge,” was part of the conspiracy charged,

or aided and abetted the conspirators. Therefore, he suggests his guilty plea has

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no factual basis and further cursorily claims his guilty plea was both unknowing

and induced by counsel rather than willingly made. The government has filed a

notice of its intention not to file an answer brief in this appeal. 

As required by Anders, we have conducted a full examination of the record

before us. See 386 U.S. at 744. While Mr. Gonzales’s appellate counsel raises

the possibility of issues affecting his guilty plea and sentencing, she admits (and

we agree) nothing in the record rises to the plain error required. As she

acknowledges, the accurate statutory range of ten years to life was announced at

Mr. Gonzales’s plea hearing, and nothing shows he would not have pled guilty

had government counsel not mis-spoke by calling the ten-year mandatory

minimum sentence his “maximum” sentence. With respect to any government

policy on what charges to bring against certain defendants, it is clearly

inapplicable to our consideration on appeal and, further, meritless. Here, the

government sought charges which, by statute, require mandatory minimum

sentences of ten years and from which the district court correctly did not deviate.

As to Mr. Gonzales’s pro se arguments, the record shows he entered his

guilty plea knowingly and voluntarily and, at his plea hearing, admitted to facts

presented which were sufficient to support both the conspiracy and aiding and

abetting drug charges against him. He also did not object at the sentencing

hearing to the same or similar facts contained in the presentence report. His

attempt to now challenge those facts on appeal is neither persuasive nor supported

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by the record, and he has not shown why he failed to object to them earlier. 

Thus, our review establishes no nonfrivolous basis for challenging the sentences

imposed. Instead, the record clearly supports the district court’s imposition of the

mandatory ten-year sentences. 

III. Conclusion

For these reasons, we GRANT counsel’s motion to withdraw and

DISMISS this appeal. 

Entered by the Court:

WADE BRORBY

United States Circuit Judge

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