United States v. Michel-Galaviz ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 1, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-4139
(D.C. No. 2:18-CR-00093-JNP-1)
MANUEL ALBERTO MICHEL- (D. Utah)
GALAVIZ,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before CARSON, BALDOCK, and MURPHY, Circuit Judges.**
_________________________________
After he had served a ten-year prison sentence for possessing
methamphetamine with the intent to distribute it, federal authorities caught
Defendant Manuel Alberto Michel-Galaviz conspiring with others to distribute heroin
and (once again) methamphetamine. Defendant pleaded guilty to the new conspiracy
charges, and the district court sentenced him to 66 months’ imprisonment for those
*
This order and judgment is not binding precedent, except under the doctrines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.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
underlying crimes. But when he took part in the latest conspiracies, Defendant also
remained under conditions of supervised release from his first stint in prison. So
Defendant further admitted to the district court that he had violated those
conditions—specifically, the condition that he “not commit another federal, state, or
local crime” while on supervised release. And on the basis of that admission, the
district court revoked his supervised release and sentenced him to an additional 24
months’ imprisonment that would run consecutively to his underlying 66-month term
of imprisonment. See 18 U.S.C. § 3583(e)(3).
Defendant now appeals the district court’s decision to impose the consecutive
24-month term of imprisonment based on his violations of supervised release.1 His
counsel, however, filed a brief under Anders v. California, 386 U.S. 738 (1967),
moving to withdraw as counsel on the basis that “any appeal would be wholly
frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing
Anders, 386 U.S. at 744). Neither Defendant nor the United States filed a response
to the Anders brief. Even so, after considering the “potential appealable issues” that
counsel dutifully pointed out in his Anders brief—and after “conduct[ing] a full
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Defendant does not challenge his 66-month term of imprisonment for the
underlying crimes, nor does he challenge any other aspect of his conspiracy
convictions themselves insofar as they are separate and distinct from his violations of
supervised release. He attempted to do so in a separate case, but we dismissed that
appeal under Anders v. California, 386 U.S. 738 (1967), and United States v. Hahn,
359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam). See generally United States
v. Michel-Galaviz, 756 F. App’x 839 (10th Cir. 2019) (unpublished).
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examination of the record” ourselves—we agree with Defendant’s counsel that “there
are no non-frivolous issues upon which [Defendant] has a basis for appeal.” Id.
Consider, for example, the first potential appealable issue that Defendant’s
counsel points out. Counsel observes that the district court may have abused its
discretion by imposing the 24-month sentence consecutively to the 66-month
sentence instead of concurrently. See United States v. Jones, 660 F. App’x 666, 668
(10th Cir. 2016) (unpublished) (“We review a district court’s decision to impose a
consecutive sentence rather than a concurrent one for an abuse of discretion.” (citing
United States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002)). But as counsel also
observes, that road leads to a dead end. For one thing, the district court committed
no procedural errors in making the 24-month sentence consecutive instead of
concurrent. In reaching its sentence, the district court considered the necessary
18 U.S.C. § 3553(a) sentencing factors and the policy statements set out in Chapter 7
of the United States Sentencing Guidelines, United States v. Cordova, 461 F.3d 1184,
1188 (10th Cir. 2006); adequately explained why it believed that a consecutive rather
than concurrent sentence was proper, United States v. Rodriguez-Quintanilla, 442
F.3d 1254, 1258 (10th Cir. 2006); and recognized that the Guidelines—specifically,
U.S.S.G. § 7B1.3(f)—did not require it to impose a consecutive sentence even though
it ultimately decided to do so. United States v. Contreras-Martinez, 409 F.3d 1236,
1241 (10th Cir. 2005). Further, the district court’s consecutive 24-month sentence is
substantively reasonable. Indeed, the 24-month sentence itself falls within the low-
end of the suggested Guidelines range, see U.S.S.G. § 7B1.4(a), which means that
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sentence is presumptively reasonable on appeal, United States v. McBride, 633 F.3d
1229, 1233 (10th Cir. 2011). Even more, U.S.S.G. § 7B1.3(f) advises sentencing
courts to order “[a]ny term of imprisonment imposed upon the revocation of
probation or supervised release . . . to be served consecutively to any sentence of
imprisonment that the defendant is serving.” And so the Guidelines expressly
contemplate a consecutive 24-month sentence for Defendant. We also discern no
§ 3553(a) factors that rebut the presumptive reasonableness of that sentence. See
McBride, 633 F.3d at 1233.
The second potential appealable issue that Defendant’s counsel notes—
namely, that the government may have breached an oral agreement with Defendant
that his sentence for violating his conditions of supervised release would run
concurrently with his sentence for his underlying conspiracy crimes—is without
merit, as well. Even assuming the oral agreement existed, the sentencing transcript
makes clear that the district court and the parties did not believe any such agreement
would have bound the district court under Federal Rule of Criminal Procedure
11(c)(1)(C). See Fed. R. Crim. P. 11(c)(1)(C) (describing plea agreements that “bind
the court once the court accepts the plea agreement.”). And so, at most, the
government could merely recommend to the district court that Defendant’s
supervised-release sentence should run concurrently with his underlying-crime
sentence, which is exactly what the government did. See Fed. R. Crim. P.
11(c)(1)(B) (describing plea agreements that “do[] not bind the court”). The
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government therefore upheld the terms of its alleged bargain; the district court simply
disagreed with the government.
Finally, our own review of the record does not lead us to believe that
Defendant has any other adequate basis for appealing his consecutive 24-month
sentence. We thus agree with Defendant’s counsel that Defendant’s appeal is wholly
frivolous, and on that basis we GRANT counsel’s motion to withdraw under Anders
and DISMISS this appeal.
Entered for the Court
Per Curiam
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