United States vs. Montiel, No. 07-2112 (10th Cir. 2007)
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FILED United States Court of Appeals Tenth Circuit November 6, 2007 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker FO R TH E TENTH CIRCUIT Clerk of Court U N ITED STA TES O F A M ER ICA, Plaintiff-Appellee, v. No. 07-2112 (D.C. No. 06-CR-1788-M V) (D . N.M .) M AN UEL M ON TIEL, Defendant-Appellant. OR D ER AND JUDGM ENT * Before KELLY, PO RFILIO, and A ND ER SO N, Circuit Judges. M anuel M ontiel appeals his conviction on a jury verdict of possession with intent to distribute 50 grams or more of methamphetamine. M r. M ontiel s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and moves for leave to withdraw as counsel. For the reasons set out below, we grant * 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. counsel s motion to withdraw and dismiss the appeal, see id. at 744 (directing dismissal of appeal upon finding case wholly frivolous ). Background On M ay 31, 2006, as he was driving on Interstate 25 in New M exico, M r. M ontiel was stopped for speeding. In checking the law-enforcement computer system to verify M r. M ontiel s documents, the police officer learned that the pickup truck was registered to M r. M ontiel and that his driver s license had been suspended. The officer also learned that M r. M ontiel s vehicle had passed through a checkpoint at the M exican border about tw o hours earlier. W hen the officer asked M r. M ontiel if he had driven from M exico, he denied it until confronted with the information to the contrary. Then M r. M ontiel said his brother must have taken his truck into M exico, even though the driving time from the checkpoint to the traffic-stop location was about tw o hours. At that point, M r. M ontiel suggested that the officer search his truck. A drug dog was obtained and it alerted to the front of the truck. Officers then discovered 348 grams of methamphetamine wrapped in cellophane and concealed in the truck s engine compartment. Further searching revealed a glass pipe of the type used for ingesting methamphetamine in the truck bed and over $1800 in cash on M r. M ontiel s person. Laboratory testing of the substance found in the truck showed that 87.7 grams of it w as pure methamphetamine. -2- M r. M ontiel was taken to the local sheriff s department. Because the facility did not have a cell for holding detainees, M r. M ontiel and an officer stood in the hallway while another officer completed paperwork. During that time, M r. M ontiel asked the officer, W ho ratted on me? R. Vol. 4, at 54. W hen told that no one had, he said that he did not believe that because he had been stopped before, but the items had not been found. Id. M r. M ontiel was charged with possession with intent to distribute 50 grams or more of methamphetamine. Following a jury trial at which he did not testify, he was convicted as charged. In this appeal, M r. M ontiel has responded to the Anders brief, arguing that his attorney prevented him from testifying despite his desire to do so and that his attorney provided ineffective assistance. 1 He also seeks different appellate counsel. Discussion W e deny M r. M ontiel s request for different appellate counsel. W e have fully examined the proceedings as required by Anders and conclude that the appeal is without merit. First, as counsel points out, the record shows that the evidence was sufficient to sustain the guilty verdict. Second, both of M r. M ontiel s arguments are based on claims of ineffective assistance of counsel, which should be brought in collateral proceedings, not on direct appeal. 1 Counsel says M r. M ontiel does not want to appeal his sentence of 120 months incarceration to be followed by five years unsupervised release. M r. M ontiel s pro se brief does not challenge the sentence. -3- To sustain a conviction for possession with intent to distribute, the government must prove that (1) the defendant possessed the controlled substance; (2) knew that he had it; and (3) possessed it with the intent to distribute it. United States v. Ramirez, 479 F.3d 1229, 1249 (10th Cir. 2007) (quotation omitted), petition for cert. filed (U.S. Sept. 10, 2007) (No. 07-7189). Possession may be either active or constructive . . . . United States v. Triana, 477 F.3d 1189, 1194 (10th Cir.) (quotation omitted), cert. denied, 127 S. Ct. 2928 (2007). The government may show constructive possession where the defendant has the power to exercise control or dominion over the item or has an appreciable ability to guide the destiny of the drug. Ramirez, 479 F.3d at 1250 (quotations omitted). [A] jury may infer intent to distribute from the possession of large quantities of drugs. United States v. Pulido-Jacobo, 377 F.3d 1124, 1131 (10th Cir. 2004). W e review the evidence de novo when evaluating its sufficiency, taking the evidence both direct and circumstantial, together with the reasonable inferences to be drawn therefrom in the light most favorable to the government. Triana, 477 F.3d at 1194. W e first conclude that the evidence was sufficient to establish that M r. M ontiel possessed the drugs and knew he possessed them. They were located in a pickup truck registered to him that he was driving at the time of discovery, and there was a drug pipe in the truck. M oreover, his statement to the police officer that he did not believe that no one had alerted the authorities because he -4- had avoided discovery before indicates that he knew the drugs were in his vehicle. W e further conclude that the evidence was sufficient to show that M r. M ontiel intended to distribute the methamphetamine. The quantity of drugs was sufficient for the jury to infer that he intended to distribute them. As a police officer testified, the amount was far too much to be intended for personal use. See R. Vol. 4 at 65 ( [n]ot even close to being a personal-use amount). In addition, the large amount of cash M r. M ontiel was carrying supported an inference that he was in the drug-distribution business. See Minner v. Kerby, 30 F.3d 1311, 1316 (10th Cir. 1994) (stating relatively large mount of cash supported finding that defendant intended to distribute drugs he possessed). Accordingly, we agree with M r. M ontiel s counsel that a challenge to the sufficiency of the evidence is frivolous. W e turn to M r. M ontiel s claims that his attorney prevented him from testifying despite his desire to do so and that his attorney provided ineffective assistance. W e have held that a right-to-testify claim is to be treated as an ineffective-assistance-of-counsel claim. Cannon v. M ullin, 383 F.3d 1152, 1170 (10th Cir. 2004). Therefore, we conclude that all of the issues raised in M r. M ontiel s pro se brief concern the ineffective assistance of counsel, claims that should be brought in collateral proceedings rather than on direct appeal from a conviction. United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir. 2006). This is so to ensure that we are provided with a developed factual record of the -5- events. Id. Consequently, we dismiss M r. M ontiel s claims of ineffective assistance of counsel. See id. (holding such claims presumptively dismissible ) (quotation omitted). Conclusion M r. M ontiel s request for different counsel on appeal is DENIED. His counsel s motion to withdraw is GRANTED. His claims of ineffective assistance of counsel are DISM ISSED because they were not properly brought in this direct appeal. H is remaining claims are DISM ISSED as frivolous. Entered for the Court Paul J. Kelly, Jr. Circuit Judge -6-
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