STATES COURT OF APPEALS
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
Defendant - Appellant.
(D.C. No. 03-CR-10038-WEB)
ORDER AND JUDGMENT(*)
Before TACHA, Chief Judge, ANDERSON and BALDOCK,
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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.
Following a jury trial, Eduardo Gutierrez-Aguiniga was found guilty of one
count of conspiracy to possess with intent to distribute methamphetamine, in
violation of 21 U.S.C. 846, one count of possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. 841(a)(1), and one count of
possession of a firearm in furtherance of a drug trafficking offense, in violation of
18 U.S.C. 924(c). He was sentenced to 352 months' imprisonment. He appeals,
arguing (1) the indictment fails to charge an offense; (2) the indictment omits an
essential element of the offense; (3) the evidence is insufficient to support his
convictions; (4) the district court erred in enhancing his sentence for being an
organizer/leader pursuant to United States Sentencing Commission, Guidelines
Manual ("USSG"), §3B1.1(c) (Nov. 2002), and for obstructing justice pursuant to
§3C1.1; and (5) his counsel was ineffective.
Gutierrez-Aguiniga's appointed counsel has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), advising this court that, "after a conscientious
examination" of his client's case, he has found this appeal to be "wholly
frivolous," and he seeks permission to withdraw as counsel. Id. at 744. After
carefully reviewing the record, we agree with Gutierrez-Aguiniga's counsel that
this appeal presents no non-frivolous issues, so we grant counsel's request to
withdraw and we affirm Gutierrez-Aguiniga's conviction and sentence.
On February 20, 2003, a Drug Enforcement Administration ("DEA") task
force obtained a search warrant for 1828 North Payne, in Wichita, Kansas. On
February 28, law enforcement personnel arrived at that address to execute the
search warrant. In executing the search warrant, officers found Gutierrez-Aguiniga standing in
the master bedroom of the house, and encountered his three
co-defendants and another individual at various locations in and around the house.
They also found materials with methamphetamine residue on them, a digital scale,
mixtures containing methamphetamine, pistol ammunition, photographs of
Gutierrez-Aguiniga with a revolver stuck in the waistband of his pants. and
baggies of a white powdery substance believed to be methamphetamine. In the
living room, they found a loaded .44 magnum revolver under a sofa seat cushion.
They also found a bucket of powdered "MSM," a veterinary supplement
commonly used to cut methamphetamine. A search of two vehicles on the
premises revealed three baggies of methamphetamine concealed in a speaker box
in one and altered headrests in the other.
Prior to the trial, all of Gutierrez-Aguiniga's co-defendants pled guilty,
including one, Jorge Gutierrez-Nunez, who agreed to testify against Gutierrez-Aguiniga. At trial,
he testified that, at the behest of Gutierrez-Aguiniga, he had
both purchased MSM to mix with methamphetamine and had packaged money to
purchase methamphetamine and placed them in the headrests of one of the
vehicles. Joan Patterson, a defendant in another trial, testified at Gutierrez-Aguiniga's trial that
she had met Gutierrez-Aguiniga in March of 2002 and
bought methamphetamine from him two to four times per week. She also testified
that he advanced her methamphetamine after she was arrested.
At his trial, Gutierrez-Aguiniga testified that, when he arrived home from
California some ten minutes before the police executed the search warrant, he
noticed the back window of his house being broken. He further testified that he
was unaware of the existence of any methamphetamine in his house or car and he
denied ever selling it. He also testified that he had been working at Cessna
Aircraft to support his family, although a Cessna personnel representative
testified that he had reviewed Cessna's employment records and nobody with the
social security number matching Gutierrez-Aguiniga was ever employed at
Cessna. A subcontractor for Cessna testified that he located an employee with the
same social security number as Gutierrez-Aguiniga but that the picture
identification of that person did not match Gutierrez-Aguiniga.
Gutierrez-Aguiniga first challenges the sufficiency of the indictment,
arguing (1) that it failed to allege that the methamphetamine he was charged with
conspiring to possess and possessing with intent to distribute was in an injectable
liquid form for purposes of its classification as a Schedule II substance; and (2)
that it failed to allege that he acted with specific intent to violate 21 U.S.C. 841(a)(1) and 846. He does not claim, nor does the record reveal, that he
challenged the sufficiency of the indictment before the district court.
Furthermore, his challenges to the indictment are meritless.
Gutierrez-Aguiniga next argues the evidence was insufficient to support his
convictions, particularly on the firearm possession charge. We review a challenge
to the sufficiency of the evidence "in a light most favorable to the government to
determine if there was sufficient evidence upon which a reasonable jury could
find [the elements if the crime charged] beyond a reasonable doubt." United
States v. Lang, 364 F.3d 1210, 1223 (10th Cir. 2004) (further quotation omitted).
We agree with Gutierrez-Aguiniga's appointed counsel's assessment that, as the
district court indicated in the sentencing proceedings, the evidence against
Gutierrez-Aguiniga was "overwhelming" and thus we find his challenge to its
Finally, Gutierrez-Aguiniga challenges two sentencing enhancements
imposed by the district court. "When considering challenges to enhancements at
sentencing, we review the district court's factual findings . . . under the clearly
erroneous standard, and review de novo the district court's legal interpretation of
the Sentencing Guidelines." United States v. Cardena-Garcia, 362 F.3d 663, 665
(10th Cir. 2004) (further quotation omitted). Gutierrez-Aguiniga received a two-level
enhancement for being an organizer/leader of the drug conspiracy and
another two-level enhancement for obstruction of justice based upon false
testimony Gutierrez-Aguiniga gave concerning his purported employment, his
involvement in transporting methamphetamine from California, his whereabouts
prior to the execution of the search warrant, and his testimony that he did not see
any drugs in his house, despite "evidence at trial [that] showed overwhelmingly
that the defendant's testimony on these matters was false." Mem. and Order at 2,
R. Vol. I, tab 148. There is no basis for challenging as clearly erroneous the
findings underlying those two enhancements.
Finally, we note that "[i]neffective assistance of counsel claims should be
brought in collateral proceedings, not on direct appeal." United States v.
Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc).
We therefore grant Gutierrez-Aguiniga's counsel's permission to withdraw
as counsel and AFFIRM his conviction and sentence.
ENTERED FOR THE COURT
Stephen H. Anderson
Click footnote number to return to corresponding location in the text.
*.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.
This document cites
- U.S. Code - Title 18: Crimes and Criminal Procedure - 18 USC 924 - Sec. 924. Penalties
- US Code - Title 21: Food and Drugs - 21 USC 846 - Sec. 846. Attempt and conspiracy
- US Code - Title 21: Food and Drugs - 21 USC 841 - Sec. 841. Prohibited acts A
- U.S. Supreme Court - Anders v. California, 386 U.S. 738 (1967)
- U.S. Court of Appeals for the Tenth Circuit - United States of America, Plaintiff-Appellee, v. Teodulfo Cardena-Garcia, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Cristobal Garcia-Suarez, Defendant-Appellant., 362 F.3d 663 (10th Cir. 2004)
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