United States v. 2009-03-10 | 07-10368 | USA V. BELTRAN-MORENO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 07-10368
Plaintiff-Appellee, D.C. No.
v. CR-05-00546-NVW
 District of Arizona,JOSE ANGEL BELTRAN-MORENO, aka PhoenixEl Tan Beltran,
Defendant-Appellant. 
 UNITED STATES OF AMERICA, No. 07-10370
Plaintiff-Appellee, D.C. No.
v. CR-05-00546-NVW
District of Arizona,  ABRAHAM BELTRAN-MORENO, aka PhoenixAbram aka Abram Beltran-Moreno
aka Adrian Beltran-Figueroa,
Defendant-Appellant. ORDER

Filed March 10, 2009
Before: Procter Hug, Jr., Stephen Reinhardt and
A. Wallace Tashima, Circuit Judges.
ORDER
The opinion filed February 10, 2009 is amended as follows:
1. At Slip Op. 1589, replace “on top of any other sentence”
with <in addition to any other sentence>.
2. At Slip Op. 1589, delete the text of footnote 1 and replace
it with:
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<We note that there appears to be an error in the for-
mal judgments of conviction for both defendants.
Compare Reporter’s Transcript of Proceedings (Sta-
tus Conference/Change of Plea) at 35-37, United
States v. Beltran-Moreno, No. 05-00546-NVW (D.
Ariz. March 8, 2007) (No. 427), and Superceding
Indictment at 3, Beltran-Moreno, No. 05-00546-
NVW (D. Ariz. June 8, 2005) (No. 43) (showing sur-
plusage crossed-out), with Judgment in a Criminal
Case at 1, Beltran-Moreno, No. 05-00546-NVW (D.
Ariz. July 7, 2007) (Nos. 392, 393) (formal judg-
ments including surplusage). The error is of no sig-
nificance for purposes of this appeal.>
3. At Slip Op. 1590, replace “the district judge exercised his
discretion under 18 U.S.C. § 3553(a) to depart downward
from the Guidelines recommendation, sentencing the defen-
dants to thirty-five years in prison instead of imprisoning
them for the rest of their lives as the Guidelines suggest, but
no longer mandate” with <the district judge exercised his dis-
cretion under 18 U.S.C. § 3553(a) and imposed a sentence of
thirty-five years, which was well below the Guidelines recom-
mendation of a life sentence>.
4. At Slip Op. 1591, replace “For reasons beyond our under-
standing, the Beltrans have appealed their sentences, arguing
that instead of imposing a mandatory minimum of twenty
years, the district court should have consolidated the two
§ 924(c) sentences into a single five-year term and imposed
a fifteen-year minimum sentence for each of them.” with <For
reasons beyond our understanding, the Beltrans appealed their
sentences, and counsel argued that instead of imposing a man-
datory minimum of twenty years, the district court should
have imposed only a single five-year sentence under § 924(c)
and therefore a total mandatory minimum of fifteen years for
each of them.>.
5. At Slip Op. 1591-92, replace “In this case, the two
§ 924(c) counts are respectively predicated on possession with
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intent to distribute methamphetamine, 21 U.S.C. §§ 841(a),
(b)(1)(A)(viii), and possession with intent to distribute
cocaine, id. §§ 841(a), (b)(1)(A)(iii).” with <In this case, the
two § 924(c) counts respectively charged the defendants with
possessing a firearm on March 12, 2005 in furtherance of
their possession with intent to distribute methamphetamine,
21 U.S.C. §§ 841(a), (b)(1)(A)(viii), and with possessing a
firearm on June 22, 2005 in furtherance of their possession
with intent to distribute cocaine, id. §§ 841(a), (b)(1)(A)(iii);
both firearm counts also incorporated the drug conspiracy
count to which the defendants pled guilty.>
6. At Slip Op. 1592, replace “rather, they appear simply to
be ignorant of the controlling law” with <rather, Jose’s coun-
sel at least appears simply to be ignorant of the controlling
law.>. To that amended sentence, attach the following new
footnote:
<Jose’s attorney argues, without mentioning the con-
trary holding in Smith, that “the statute does not . . .
require each firearm sentence to . . . be consecutive
to each [other] firearm sentence.” Abraham’s attor-
ney presents a slightly different claim, albeit with the
same result. He argues that the predicate offenses for
Abraham’s two gun charges are not distinct because
the factual basis adduced by the government during
Abraham’s plea colloquy establishes his guilt with
respect to only a single drug conspiracy count and no
more. While not legally frivolous, this argument is
clearly belied by the very portion of the record Abra-
ham’s counsel quotes in his brief. Abraham’s coun-
sel asserts that the factual basis for Abraham’s plea
establishes that the first firearm count was predicated
on the drug conspiracy count. The record demon-
strates that the prosecutor established that Abra-
ham’s second gun count was predicated on “the
crime of possession [with intent to distribute]
methamphetamine.” Under our circuit law as it has
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existed for over ten years, “possession with intent to
distribute and conspiracy [to possess with intent to
distribute] are two separate offenses for section
924(c) purposes.” United States v. Lopez, 37 F.3d
565, 570 (9th Cir. 1994), vacated on other grounds
516 U.S. 1022 (1995); see United States v. Andrews,
75 F.3d 552, 557-58 (9th Cir. 1996) (reaffirming
Lopez’s § 924(c) sentencing analysis). Accordingly,
the conclusion that Abraham is properly subject to
two consecutive § 924(c) sentences is inescapable.>
7. At Slip Op. 1593, replace “strong warning for the defen-
dant’s appellate counsel” with <strong warning for appellate
counsel>. In the following sentence, at Slip Op. 1594, insert
the word <here> between “have counsel” and “avoided a dis-
position”.
8. At Slip Op. 1594, insert the words <the record and>
between “research” and “the relevant case law”. In the sen-
tence after that, delete the words “one has been”.
9. At Slip Op. 1594, replace the sentence “We also remind
counsel of their ethical obligations not to present arguments
to this court that are legally frivolous.” with the following two
sentences: <We also remind counsel of their ethical obliga-
tions not to present frivolous arguments to this court. If, after
counsel have researched the governing law and advised their
clients of the lack of merit in their appeal and of the poten-
tially severe adverse consequences they face, their clients still
insist on going forward, counsel are best advised to file a brief
with this court as set forth in Anders v. California, 386 U.S.
738, 744 (1967).>.
No subsequent Petitions for Rehearing or Rehearing En
Banc shall be permitted in No. 07-10368. The Petition for
Rehearing and Suggestion For Rehearing En Banc in No. 07-
10370 is due by March 26, 2009 consistent with the Clerk’s
Order filed February 25, 2009.
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