United States v. Mendoza , 73 F. App'x 179 ( 2003 )

Order

Gregorio Mendoza pleaded guilty to a conspiracy that planned to distribute 100 kilograms of marijuana. See 21 U.S.C. §§ 846, 841(a)(1). He was sentenced to 81 months’ imprisonment. Counsel believes that Mendoza’s appeal is frivolous and seeks leave to withdraw. The request complies with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). See United States v. Tabb, 125 F.3d 583 (7th Cir.1997). Mendoza was notified and filed a response. See Circuit Rule 51(b).

Mendoza’s sentence is within the guideline range, and he does not contest any of the elements leading to its calculation. The only argument Mendoza seeks to present on appeal — which is also the only potential argument counsel could discover — is that 81 months is unduly long compared with the 33-month sentence one of his co-conspirators received. We agree with counsel that this argument would be frivolous, for multiple reasons. First, it was not presented to the district judge and therefore has not been preserved for appeal. Second, Mendoza and the co-defendant are not similarly situated: the co-defendant not only was a minimal participant (benefiting from a four-level reduction) but also provided substantial assistance to the prosecutor and properly received a reward in the form of a lower sentence, while Mendoza did not provide such assistance. Finally, an argument based on disparity among sentences in a single case is not a proper ground for departure from the Sentencing Guidelines. See United States v. McMutuary, 217 F.3d 477, 483-90 (7th Cir.2000). Each defendant must be correctly sentenced in light of his own deeds and background; no one is entitled to the benefit of reductions rightly (or wrongly) applied to other offenders.

Counsel’s motion to withdraw is granted, and the appeal is dismissed as frivolous.