U.S. v. LOBATO, 265 Fed.Appx. 708 (10th Cir. 2008)

No. 07-8033.United States Court of Appeals, Tenth Circuit.
February 15, 2008.

Appeal from the United States District Court for the District of Wyoming.

Stuart S. Healy, III, Office of the United States Attorney, Cheyenne, WY, for Plaintiff-Appellee.

Donald E. Miller, Graves, Miller Kingston, Cheyenne, WY, for Defendant-Appellant.

Gabrial J. Lobato, Tucson, AZ, pro se.

Before KELLY, ANDERSON, and MURPHY, Circuit Judges.[*]

ORDER AND JUDGMENT[**]

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Gabrial J. Lobato pleaded guilty to one count of conspiracy to possess with intent to distribute, and to

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distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) (b)(1)(A). Mr. Lobato was sentenced to 360 months’ imprisonment, five years’ supervised release, and a $1,500 fine.[1] After Mr. Lobato timely filed a notice of appeal, his counsel filed an Anders brief and motion to withdraw. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Lobato was served with a copy of the Anders brief but did not file a response. The government contends that this case should be remanded to the district court for a further hearing on the application of an enhancement used to calculate the sentence. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we have independently reviewed the record and we deny counsel’s motion to withdraw and remand to the district court for resentencing.

The Anders brief addresses whether the district court erred by imposing a three-level enhancement pursuant to § 3B1.1(b). In considering whether the enhancement is supported by a preponderance of the evidence, Mr. Lobato argues that the court failed to resolve a factual dispute concerning whether Mr. Lobato acted as a manager or supervisor in a conspiracy involving five or more participants. The presentence investigation report (“PSR”) found that a § 3B1.1(b) enhancement was warranted because Mr. Lobato managed or supervised at least two people and the overall conspiracy involved at least five or more participants. After receiving the PSR, Mr. Lobato objected to its factual findings, claiming that he did not manage or supervise five or more people. The probation office rightly responded that § 3B1.1(b) only requires that a defendant manage or supervise at least one person so long as the conspiracy involves at least five people See U.S.S.G. § 3B1.1(b) cmt. n. 2. Armed with the correct understanding of § 3B1.1(b), Mr. Lobato objected at sentencing to the PSR, see Fed.R.Crim.P. 32(i)(1)(D), claiming that he did not manage or supervise anyone. The district court considered the merits of Mr. Lobato’s objection, but overruled it based solely upon the facts presented in the PSR. The government concedes this constituted error because Mr. Lobato’s factual objection was sufficient to invoke the district court’s Rule 32 fact-finding obligation See Fed.R.Crim.P. 32(i)(3)(B); United States v. Guzman, 318 F.3d 1191, 1198 (10th Cir. 2003).[2]

Mr. Lobato also argues that the enhancement effectively denied him his three-level reduction for acceptance of responsibility. However, as the application of advisory Guidelines enhancements and adjustments are cumulative, this argument is wholly frivolous. See U.S.S.G. §§ 1B1.1(c), (e) cmt. n. 4(B).

Because counsel’s motion to withdraw was based on his belief that Mr. Lobato had no meritorious arguments on appeal and because the government concedes error, we DENY counsel’s motion to withdraw. We REMAND to the district court to VACATE Mr. Lobato’s sentence and

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resentence him in accordance with this order and judgment.