FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                          July 27, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                             No. 15-8124
v.                                                (D.C. No. 2:15-CR-00089-SWS-1)
                                                              (D. Wyo.)
ANTONIO MONCADA, JR.,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
                  _________________________________

      Defendant Antonio Moncada, Jr. pleaded guilty to conspiracy to distribute over

500 grams of a methamphetamine mixture, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(a), 846,

and possession of firearms in furtherance of a drug-trafficking crime, see 18 U.S.C.

§ 924(c)(1)(A). The district court imposed consecutive sentences of 180 months’

imprisonment on the first count and 60 months on the second. After Defendant brought

an appeal, his counsel filed an Anders brief and moved to withdraw as counsel. See

Anders v. California, 

(1967). Under Anders, defense counsel may “request

*
 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. This order and judgment is not binding precedent, except under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.
permission to withdraw where counsel conscientiously examines a case and determines

that any appeal would be wholly frivolous.” United States v. Calderon, 

,

930 (10th Cir. 2005); see also 10th Cir. R. 46.4(B)(1). Defendant and the government

were given the opportunity to respond to counsel’s filings but neither did so. After

conducting our own “full examination of all the proceedings,” 

,

we agree that there are no nonfrivolous issues for appeal. Exercising jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we dismiss this appeal and grant counsel’s

motion to withdraw.

       I. BACKGROUND

       A two-count indictment was filed against Defendant on May 20, 2015. He chose

not to accept a plea agreement that required him to cooperate with the government and

instead pleaded guilty on September 1 without the benefit of an agreement.

       The presentence report (PSR) computed the quantity of methamphetamine

distributed by Defendant as 17,283 grams. Under the applicable sentencing guidelines,

distribution of at least 15 kilograms, but less than 45 kilograms, of methamphetamine

carried a base offense level of 36. See U.S.S.G. § 2D1.1 (2014). After a three-level

reduction for acceptance of responsibility, see 

his total offense level

was 33. Defendant had a criminal-history category of VI based on six prior convictions

adding three criminal-history points each, see 

(“Add 3 points for each prior

sentence of imprisonment exceeding one year and one month.”), 4A1.2(k) (relating to

additional sentence after revocation of probation or parole), resulting in a guidelines

sentencing range of 235 to 293 months’ imprisonment for count 1. See 

Pt. A.


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On count 2 the statute provided a mandatory 60 months’ imprisonment to be served

consecutively to the sentence on count 1. See 18 U.S.C. § 924(c)(1)(A)(i), (c)(1)(D)(ii).

       At sentencing, Defendant acknowledged reviewing the PSR with counsel and

made no objections to the report. Defendant asked the court to vary downward to 120

months on the first count to account for his age. The government opposed such a

variance and asked for a guidelines sentence. The court varied downward, sentencing

Defendant to 180 months’ imprisonment on the first count and 60 months’ imprisonment

on the second.

       II. DISCUSSION

       An appeal in this case could succeed only if the guilty plea was invalid or if the

sentence was unreasonable. Based on our independent review of the record, we agree

that an appeal on either issue would be frivolous.

       To be valid, a guilty plea must be knowingly, intelligently, and voluntarily made.

See United States v. Gigot, 

, 1196–97 (10th Cir.1998). Fed. R. Crim. P. 11

“is designed to assist the district judge in making the constitutionally required

determination that a defendant’s guilty plea is truly voluntary.” McCarthy v. United

States, 

, 465, (1969). In this case the district court complied with Rule 11.

It ensured that Defendant understood his trial rights; questioned Defendant to confirm

that he understood the charges against him; informed him of the mandatory minimum, the

maximum possible penalty, the guidelines sentencing process, and the consequences of

the plea; verified a factual basis for the plea; and otherwise ensured that the plea was




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freely, voluntarily, and intelligently made. After independent review of the hearing, we

see no nonfrivolous ground for challenging the plea.

       Nor is there any potentially meritorious ground for appealing Defendant’s

sentence. We review sentences for procedural and substantive reasonableness. See

United States v. Balbin–Mesa, 

, 786–87 (10th Cir.2011). The PSR correctly

calculated the guideline range, and the court committed no procedural errors. With

regard to the substantive reasonableness of the sentence, Defendant’s below-guideline

sentence is entitled to a “rebuttable presumption of reasonableness” when “challenged by

the defendant as unreasonably harsh.” 

There is nothing apparent in the record

that would rebut that presumption. The court considered the factors required by 18

U.S.C. § 3553(a). It varied downward from the guidelines range and said it was

imposing a sentence “sufficient but not greater than necessary to accomplish the

objectives after consideration of those factors under Title 18[, §] 3553(a)(1) through (7).”

R., vol. 3 at 39. There is no plausible basis to challenge Defendant’s sentence.

       III. CONCLUSION

       We DISMISS the appeal and GRANT counsel’s motion to withdraw.

                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




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