D.C. No. 1:10-CR-00314-NDF-1 D. Wyo.
Before BRISCOE, Chief Judge, ANDERSON, Circuit Judge, and BRORBY, Senior Circuit Judge.
ORDER AND JUDGMENT [*]
Stephen H. Anderson Circuit Judge.
Gerardo Zapata-Reyes pleaded guilty to three counts of a five-count superseding indictment: Count 1, conspiracy to possess with intent to distribute, and to distribute, methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; Count 2, conspiracy to launder money, in violation of 18 U.S.C. § 1956(a)(1)(B)(1) and (h); and Count 3, carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). After granting a stipulated motion to depart downward from the Sentencing Guidelines range, the district court sentenced him to 87 concurrent months on Counts 1 and 2 and 60 consecutive months on Count 3.
Mr. Zapata-Reyes appeals, but his appointed counsel has moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious grounds to pursue an appeal. As required under Anders, counsel has filed a brief with the court "referring to anything in the record that might arguably support the appeal, " id. at 744, and counsel has furnished a copy of the brief to Mr. Zapata-Reyes. Mr. Zapata-Reyes has filed a pro se response to the Anders brief, and the government has declined to file a response brief. For the following reasons, we grant the motion to withdraw and dismiss this appeal.
Our task in an Anders case is to "conduct a full examination of the record to determine whether defendant's claims are wholly frivolous." United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). If they are, we may grant counsel's motion to withdraw and dismiss the appeal. Id. "Frivolous means lacking a legal basis or legal merit; not serious; not reasonably purposeful." United States v. Lain, 640 F.3d 1134, 1137 (10th Cir. 2011) (brackets and internal quotation marks omitted). In this case, we conduct our Anders examination through the lens of plain-error review because Mr. Zapata-Reyes did not raise any of his issues in the district court. See United States v. Vonn, 535 U.S. 55, 58-59, 62-63 (2002); United States v. Ferrel, 603 F.3d 758, 763 (10th Cir. 2010). "Plain error occurs when there is (1) error, (2) that is plain, which (3) affects the defendant's substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Landeros-Lopez, 615 F.3d 1260, 1263 (10th Cir. 2010) (internal quotation marks omitted).
Mr. Zapata-Reyes first argues that the district court failed to comply with Federal Rule of Criminal Procedure 11(b)(1)(H)'s requirement that the court inform a defendant of any maximum possible penalty on Count 3, the firearm charge. Specifically, he acknowledges that the district court informed him of a statutory minimum of five years' imprisonment but claims the court failed to tell him that Count 3 carried a statutory maximum sentence of life imprisonment. This argument wholly lacks legal merit. The statute of conviction on Count 3 was 18 U.S.C. § 924(c)(1)(A), which provides three different minimum sentences for a person who uses, carries, or possesses a firearm in connection with a crime of violence or a drug-trafficking crime: five years for use, carrying, or possession of a firearm; seven years if the firearm is brandished; and ten years if it is discharged. Section 924(c)(1)(A) does not provide any maximum sentence, life or otherwise. Mr. Zapata-Reyes has not identified the source of his belief that he faced a maximum sentence of life imprisonment nor have we uncovered any potentially applicable maximum life sentence. Furthermore, the district court informed him that the Guidelines range for the drug offense (Count 1) was between a mandatory minimum 120 months and 135 months, that the minimum five years on the gun offense would be added to that, and that "there is the potential for a higher sentence if facts and circumstances surface that encourage the Court to go above the low end recommendation or that trigger the guidelines in a way that we don't know today." R. Vol. 3 at 15. Hence, we see no plain error in the fact that the district court did not advise him that he faced a maximum sentence of life imprisonment on Count 3, and we conclude that this argument is frivolous.
Mr. Zapata-Reyes next contends that he did not understand the nature of Count 3, which charged him as follows:
From on or about November 2007, through and including on or about November 29, 2010, in the District of Wyoming, [defendant] knowingly carried a firearm during and in relation to a drug trafficking crime, to wit: conspiracy to possess with intent to distribute and to distribute methamphetamine, in violation of 21 U.S.C. § 846, as more fully alleged in Count One of this indictment.
In violation of 18 U.S.C. § 924(c)(1)(A).
Supp. R. Vol. 1 at 17. Mr. Zapata-Reyes observes that, during the plea hearing, the district court described the predicate drug trafficking crime as "possession with intent to distribute and to distribute methamphetamine, " R. Vol. 3 at 22 (emphasis added), when that charge (Count 1) was "conspir[acy] . . . to possess with intent to distribute, and to distribute . . . methamphetamine, " Supp. R. Vol. 1 at 16 (emphasis added). He claims that but for this misinformation about an element of the firearms charge, he would not have pleaded guilty to Count 3. We see no plain error. The predicate offense was charged in part under 21 U.S.C. § 846, which provides that "[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." Consequently, there is no meaningful distinction between conspiracy to possess and possession for purposes of Count 3's predicate drug-trafficking crime. Further, Mr. Zapata-Reyes has not taken issue with his plea of guilty to Count 1's conspiracy charge. Hence, although the district court misstated the drug charge as possession instead of conspiracy to possess, that misstatement did not affect Mr. Zapata-Reyes's "substantial rights" or "seriously affect the fairness, integrity, or public reputation of [his] judicial proceedings, " Landeros-Lopez, 615 F.3d at 1263, as required under plain-error review. Accordingly, we conclude that this argument is frivolous.
Mr. Zapata-Reyes's third argument is that the district court failed to establish an adequate factual basis that he knowingly carried a firearm during and in relation to a drug trafficking crime, as charged in Count 3 under § 924(c)(1)(A). He claims the court did not establish that he was engaged in a substantive drug crime while he carried the gun and that the court coerced him during the plea colloquy. We disagree.
"Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea." Fed. R. Crim. P. 11(b)(3). "This rule is intended to ensure the accuracy of the plea through some evidence that a defendant actually committed the offense." Landeros-Lopez, 615 F.3d at 1263 (internal quotation marks omitted). "A firearm is carried 'during and in relation to' the underlying crime when the defendant avails himself of the weapon and the weapon plays an integral role in the underlying offense." United States v. Brown, 400 F.3d 1242, 1249 (10th Cir. 2005) (ellipsis, brackets, and internal quotation marks omitted). "The 'during and in relation to' standard requires the government to prove a direct nexus between the defendant's carrying of a firearm and the underlying drug crime." Id. "To establish this nexus, we require evidence that the defendant intended the firearm to be available for use in the offense." Id. Further, a firearm is carried "in relation to" a drug trafficking crime if it has at least "the potential of facilitating" such a crime. Id. at 1250 (internal quotation marks omitted). Section 924(c)'s "carry" provision "applies to a person who knowingly possesses and conveys firearms in a vehicle, including in the locked glove compartment or trunk of a car, which the person accompanies." United States v. Lindsey, 389 F.3d 1334, 1338 (10th Cir. 2004) (internal quotation marks omitted).
The charges brought against Mr. Zapata-Reyes arose after he was arrested in Montana during a traffic stop. In his car, police found $4, 000 in cash and a gun, each wrapped in plastic, but no drugs. At the plea colloquy, Mr. Zapata-Reyes attested that when he was stopped and arrested, he was driving from Wyoming to Washington to purchase drugs with the $4, 000, which were drug proceeds from similar, previous trips that resulted in drug sales in Wyoming. He admitted he possessed the gun and put it in his car ...