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    The United States Court of Appeals for the Tenth Circuit affirmed Silvestre Guebara's sentence for possession with intent to distribute marijuana. The Court rejected Guebara's arguments that the district court double counted a prior conviction and should have reduced his offense level for being a minor participant. The Court found that any double counting in the original Presentence Report was corrected and did not affect the criminal history calculation. Additionally, it was Guebara's burden to prove he was entitled to a minor participant reduction, not the district court's duty to apply it sua sponte. The Court therefore granted defense counsel's motion to withdraw and denied Guebara's motion to appoint new counsel.

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    Filed: Patrick Fisher

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    The United States Court of Appeals for the Tenth Circuit affirmed Silvestre Guebara's sentence for possession with intent to distribute marijuana. The Court rejected Guebara's arguments that the district court double counted a prior conviction and should have reduced his offense level for being a minor participant. The Court found that any double counting in the original Presentence Report was corrected and did not affect the criminal history calculation. Additionally, it was Guebara's burden to prove he was entitled to a minor participant reduction, not the district court's duty to apply it sua sponte. The Court therefore granted defense counsel's motion to withdraw and denied Guebara's motion to appoint new counsel.

    Original Description:

    Filed: 2001-06-05 Precedential Status: Non-Precedential Docket: 00-3124

    Original Title

    United States v. Guebara, S., 10th Cir. (2001)

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    The United States Court of Appeals for the Tenth Circuit affirmed Silvestre Guebara's sentence for possession with intent to distribute marijuana. The Court rejected Guebara's arguments that the district court double counted a prior conviction and should have reduced his offense level for being a minor participant. The Court found that any double counting in the original Presentence Report was corrected and did not affect the criminal history calculation. Additionally, it was Guebara's burden to prove he was entitled to a minor participant reduction, not the district court's duty to apply it sua sponte. The Court therefore granted defense counsel's motion to withdraw and denied Guebara's motion to appoint new counsel.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    30 views6 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit affirmed Silvestre Guebara's sentence for possession with intent to distribute marijuana. The Court rejected Guebara's arguments that the district court double counted a prior conviction and should have reduced his offense level for being a minor participant. The Court found that any double counting in the original Presentence Report was corrected and did not affect the criminal history calculation. Additionally, it was Guebara's burden to prove he was entitled to a minor participant reduction, not the district court's duty to apply it sua sponte. The Court therefore granted defense counsel's motion to withdraw and denied Guebara's motion to appoint new counsel.

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    of 6

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    JUN 5 2001

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    SILVESTRE GUEBARA,

    No. 00-3124
    (D.C. No. CR-99-10057-14-MLB)
    (D. Kansas.)

    Defendant - Appellant.
    ORDER AND JUDGMENT

    Before BRORBY , McKAY , and LUCERO , Circuit Judges.

    Appellant Silvestre Guebara was indicted for conspiracy to knowingly


    possess with intent to distribute 1000 kilograms of a mixture or substance
    containing a detectable amount of marijuana in violation of 21 U.S.C.
    841(a)(1) and 846 and for knowingly possessing with intent to distribute
    approximately 100 pounds of a mixture or substance containing a detectable
    amount of marijuana in violation of 18 U.S.C. 2 and 21 U.S.C. 841(a)(1). In
    The case is unanimously ordered submitted without oral argument
    pursuant to Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 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.
    *

    exchange for the governments agreement to dismiss the conspiracy count,


    appellant entered a plea of guilty to possession with intent to distribute. The
    district court accepted appellants plea and ordered preparation of a presentence
    investigation report (PSR).
    Apparently pursuant to the PSR, which recommended a two-level offense
    level reduction for acceptance of responsibility, the district court sentenced
    appellant to sixty-three months imprisonment, six years of supervised release, a
    $100 assessment, and ineligibility for all federal benefits for a period of five
    years. Appellant challenges the sentence on two grounds: first, that the
    sentencing court double counted a 1994 battery conviction in calculating his
    criminal history category, and second, that the court should have decreased his

    -2-

    offense level under U.S.S.G. 3B1.2 for minor participation.

    Exercising

    jurisdiction under 18 U.S.C. 3742 and 28 U.S.C. 1291, we affirm.


    In sentencing appeals, [w]e review the district courts factual findings
    under the clearly erroneous standard and review its applications of the Sentencing
    Guidelines de novo.
    1999) (citation omitted),

    United States v. Roberts , 185 F.3d 1125, 1144 (10th Cir.


    cert. denied , 120 S. Ct. 1960 (2000). We giv[e] due

    Appellants appointed counsel filed an


    Anders brief characterizing this
    appeal as frivolous. See Anders v. California , 386 U.S. 738, 744 (1967)
    (permitting counsel who considers an appeal to be wholly frivolous to advise the
    court of that fact, request permission to withdraw from the case, and submit a
    brief referring to portions of the record that arguably support the appeal). He
    filed a motion asking for permission to withdraw and appointment of new
    counsel for the appeal.
    In return, appellant filed a response suggesting that he has received
    ineffective assistance of counsel. (Appellants Resp. at 1 (My attorney has
    failed from the beginning of my sentencing.).) For reasons stated in
    United
    States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995), the Court will not pass
    on the ineffective assistance of counsel issue at this time:
    1

    Ineffective assistance of counsel claims should be brought in


    collateral proceedings, not on direct appeal. Such claims brought on
    direct appeal are presumptively dismissible, and virtually all will be
    dismissed. . . .
    The reasons for this rule are self-evident. . . . A factual record
    must be developed in and addressed by the district court in the first
    instance for effective review.
    We note that appellants counsel did not designate the transcript of the
    sentencing hearing as part of the record on appeal. Appellant states in his
    response, My attorney has failed to send me transcripts from my sentencing after
    . . . 10 letters written to him. (Appellants Resp. at 2.) We conclude that
    appellants challenges can be resolved without the transcript.
    -3-

    deference to the district courts application of the guidelines to the facts.


    United States v. Vallo , 238 F.3d 1242, 1250 (10th Cir. 2001) (quoting

    United

    States v. Patron-Montano , 223 F.3d 1184, 1188 (10th Cir. 2000)). The

    government argues that a plain error standard of review should apply in this
    appeal because appellant did not make his arguments before the sentencing court.
    As explained below, our review of the record would require us to reject
    appellants arguments even if we assumed that he properly preserved his
    objections during sentencing.
    Appellant bases his first argumentthat the district court double counted
    his 1994 battery conviction in computing his criminal history categoryon his
    copy of the original version of the PSR, which included two references to the
    same crime. The double counting in the original PSR, however, was harmless
    because it did not affect the final criminal history calculation. In addition, the
    PSR was revised before the sentencing date to omit the double reference. This
    aspect of the district courts sentencing was not erroneous.

    Appellants Response appears to challenge another aspect of his criminal


    history computation. He states, I also feel the Courts failed to supply adequate
    information on Page 10 of my [PSR] on a D.U.I. making it unfair to use [it] . . .
    and allow one point for this offense. (Appellants Resp. at 1.) Although the
    PSR excluded the date of that offense as unknown, it did include other
    informationthe court in which appellant pleaded guilty, the docket number, the
    date of sentencing, and the sentencemaking it fair to include the offense in
    calculating his criminal history category.
    2

    -4-

    Similarly, the sentencing court did not err by failing to decrease appellants
    offense level for minor participation sua sonte. Under U.S.S.G. 3B1.2(b), the
    sentencing court may grant a two-point reduction if the defendant proves by a
    preponderance of the evidence [he] acted as a minor participant in the offense.
    United States v. Chavez , 229 F.3d 946, 956 (10th Cir. 2000) (citing
    v. Lockhart , 37 F.3d 1451, 1455 (10th Cir. 1994));

    United States

    see United States v.

    Santistevan , 39 F.3d 250, 254 (10th Cir. 1994) (It is the defendants burden to
    establish, by a preponderance of the evidence, his entitlement to an offense level
    reduction under 3B1.2. (citations omitted)). It was appellants, not the
    sentencing courts, burden to raise and prove that he was entitled to the decrease
    in offense level.

    As mentioned above, appellant entered a plea of guilty to possession


    with intent to distribute in exchange for the governments promise to dismiss the
    greater conspiracy count. If appellant had sought a decrease in offense level
    under 3B1.2(b), it would have been a difficult sell. As the commentary
    accompanying the sentencing guideline states,
    3

    If a defendant has received a lower offense level by virtue of being


    convicted of an offense significantly less serious than warranted by
    his actual criminal conduct, a reduction for a mitigating role under
    this section ordinarily is not warranted because such defendant is not
    substantially less culpable than a defendant whose only conduct
    involved the less serious offense.
    U.S.S.G. 3B1.2(b) cmt. 4.
    Appellant attacks as false a Drug Enforcement Agency officials testimony
    to the effect that appellant was not a minor participant in an offense. Because the
    (continued...)
    -5-

    Counsels motion to withdraw is


    counsel appointed is

    GRANTED . Appellants motion to have

    DENIED , and his sentence is

    AFFIRMED.

    Entered for the Court


    Carlos F. Lucero
    Circuit Judge

    (...continued)
    district court did not have a duty to decrease sua sponte appellants offense level,
    the attack is to no avail.
    3

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