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Date: Filed /
STATES COURT OF APPEALS
ORDER AND JUDGMENT(*)
Before EBEL, KELLY and LUCERO, Circuit
Defendant-Appellant Roberto Barajas pled guilty on September 7, 1999, to
one count of conspiracy to possess with intent to distribute and to distribute
methamphetamine and cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A)(ii)(II) and (viii). He entered into a standard plea agreement. It
provided that Barajas was responsible for approximately ten pounds (4.5
kilograms) of methamphetamine. The plea agreement permitted Barajas to appeal
only his sentence. Pursuant to the plea agreement, Barajas fully cooperated with
the United States government, and thus the government recommended a two-point downward
departure for substantial assistance in accordance with United
States Sentencing Guideline § 5K1.1. The government also recommended that
Barajas receive a three-level reduction for acceptance of responsibility pursuant
to U.S.S.G. § 3E1.1. The sentencing court adopted those recommendations, and
it also found Barajas eligible for the "safety valve" provision under U.S.S.G.
§ 5C1.2 and 18 U.S.C. § 3553(f). Consequently, on April 10, 2000, the court
found Barajas had a total offense level, after all reductions, of twenty-seven and
a criminal history category of I, giving a sentencing range of seventy to eighty-seven months.
The court sentenced Barajas to seventy months imprisonment,
five years supervised release, $750 fine, and $100 special monetary assessment.
Barajas appealed alleging that he was not treated fairly by the sentencing
court. His attorney filed a brief with this court pursuant to Anders v. California,
386 U.S. 738 (1967), stating that "[a]fter a conscientious examination of the
record below, and issue presented in this appeal having been thoroughly
researched, it is counsel's belief that there is no merit to the issue." (Br. at 2.)
Pursuant to our duty under Anders, we conducted an independent review of his
sentence, see id. at 744, and we agree that the appeal is frivolous. Therefore,
GRANT counsel's request to withdraw and DISMISS the appeal.
ENTERED FOR THE COURT
David M. Ebel
Click footnote number to return to corresponding location in the text.
*.After examining the briefs and appellate
record, this panel has determined
unanimously to grant the parties' request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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.
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