United States v. Chavez , 89 F. App'x 690 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 17 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 03-1240
(D.C. No. 02-CR-342-WM)
MARCOS RODOLFO CHAVEZ, (D. Colorado)
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 03-1243
(D.C. No. 02-CR-342-WM)
MARTHA GUADALUPE CHAVEZ, (D. Colorado)
Defendant - Appellant.
ORDER AND JUDGMENT *
*
After examining the briefs 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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Before BRISCOE , McKAY , and HARTZ , Circuit Judges.
Husband and wife codefendants, Marcos Rodolfo Chavez and Martha
Guadalupe Chavez, pleaded guilty to an indictment charging them with
distribution of a controlled substance in violation of 21 U.S.C. § 841. Applying
the Sentencing Guidelines, the district court determined Mr. Chavez’s applicable
sentencing range to be 30–37 months’ imprisonment, and Mrs. Chavez’s to be
24–30 months. Because the Defendants offered substantial assistance to
government agents, the United States moved for a 50% downward departure for
each Defendant, see U.S.S.G. § 5K1.1, and the district court granted the motions.
Mr. Chavez was sentenced to 15 months in prison. Mrs. Chavez was sentenced to
12 months and one day in prison.
Defendants directed their respective defense counsel to file notices of
appeal, and counsel timely complied. Mr. Chavez’s notice of appeal does not
state what is being appealed other than “the validity of the sentence imposed.”
Presumably, this refers to the district court’s refusal to grant defense counsel’s
request for a downward departure in addition to the 50% departure it granted.
Mrs. Chavez’s notice of appeal states only that it is appealing “the judgments
rendered.”
The Defendants’ counsel have jointly filed a brief under the authority of
Anders v. California, 386 U.S. 738, 744 (1967). Appellate counsel who believes
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an appeal to be “wholly frivolous, after a conscientious examination,” may file a
brief with the court requesting permission to withdraw, but informing the court of
“anything in the record that might arguably support the appeal.” Id. at 744. The
defendant is then given a chance to “raise any points that he chooses”; and the
court, “after a full examination of all the proceedings, . . . decide[s] whether the
case is wholly frivolous.” Id.Defendants have not filed any response to counsels’ brief, despite several
letters from the court advising them of their right to do so. Additionally, the
United States has filed no brief.
We have conducted our own review of the record and agree that an appeal
in this case would be wholly frivolous. Accordingly, we GRANT counsels’
request to withdraw and DISMISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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