Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Richard M. Adams (Adams) appeals from the sentence imposed by the district court following his guilty plea for distributing heroin. Adams seeks reversal of his sentence on the grounds that 18 U.S.C. § 3553(e) (West Supp.1989) violates his Fifth Amendment due process rights. We disagree and affirm.

PERTINENT FACTS

On March 9, 1988, Adams was arrested following his delivery of 199 grams of heroin to an undercover officer at Seattle-Tacoma International Airport. On March 30, 1988, Adams entered a plea agreement with the government in which he waived indictment and pleaded guilty to an information. The plea agreement required Adams to enter a plea of guilty to one count of distributing in excess of one hundred grams of heroin, in violation of 21 U.S.C. § 841(a) (2) (West 1981). It recited the mandatory penalty of "a term of imprisonment which may not be less than 10 years." 21 U.S.C. § 841(b) (1) (B) (i) (West Supp.1989); It further required Adams to "cooperate with authorities" and "testify fully and truthfully if called as a witness before the Federal Grand Jury and at any trial which might result from his cooperation."

In return, the government agreed to recommend that the court sentence Adams "to a term of imprisonment no greater than the lowest term ... so long as said term is at least one hundred twenty (120) months." Additionally, the government agreed "not to prosecute the defendant for any other drug related offenses ... [or] for resisting arrest on March 9, 1988, or for any false representations he may have made in connection with his financial affidavit submitted." The government did not promise nor in any manner indicate that it would recommend to the trial court that it should impose a sentence below the mandatory minimum of ten years.

At the sentencing hearing on June 24, 1988, consistent with the terms of the plea agreement, the government recommended "that the Court not sentence [Adams] in excess of the statutory mandatory minimum of 120 months." Adams defense counsel objected to this sentence, arguing that section 3553(e) violated his due process rights because it vested sole discretion in the government to decide when to move for a reduction of sentence. The district judge rejected this argument and stated: "I am going to decline to hold the section unconstitutional." Adams was sentenced to a term of imprisonment for a period of ten years. Judgment was entered on July 7, 1988. Adams filed a timely notice of appeal.

DISCUSSION

Adams' counsel has filed a brief on Adams' behalf in compliance with the procedures required under Anders v. California, 386 U.S. 738 (1967). The brief raised all the issues counsel believed Adams wished to present on appeal from the judgment. The brief presented Adams' contention that the mandatory minimum sentence was unconstitutional as applied. It also raised Adams' challenge to the constitutionality of section 3553(e). Defense counsel informed this court that both of these issues are not meritorious. Therefore, he requests that he be allowed to withdraw as Adams' attorney on this appeal. On January 31, 1989, we issued an order that referred counsel's motion to withdraw from this appeal to the merits panel and advised Adams that he could file a pro se supplemental brief raising any issues he wishes to be considered on appeal. After receiving a copy of this order, Adams advised the clerk of this court that he did not intend to file a supplemental brief. Adams did not file a supplemental brief.

In Anders, the Supreme Court laid out the procedures that must be followed if a criminal appellant's appointed counsel believes that the appeal has no merit. First, defense counsel is required to submit a brief on his client's behalf arguing anything in the record that might arguably support the appeal. 386 U.S. at 744. Second, a copy of counsel's brief should be furnished to the appellant. Third, the appellant must be afforded ample time to allow him to raise any points that he chooses in a pro se supplemental brief. Fourth, the reviewing court must decide whether the case is "wholly frivolous." Id. If the reviewing court finds the case to be wholly frivolous, it may grant counsel's request to withdraw and dispose of the appeal. Id. "On the other hand, if it finds any of the legal points arguable on their merits ... it must ... afford the indigent the assistance of counsel to argue the appeal." Id.

We have conducted an independent review of the issues raised by Adams before the trial court. We have concluded that this appeal is wholly frivolous. Adams contends that section 3553(e) violates his right to due process by vesting "sole discretion in the Government to decide when and whether to move for a reduction of sentence."

Section 3553(e) provides:

(e) Limited authority to impose a sentence below a statutory minimum.--Upon motion from the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.

Before the district court, Adams argued through counsel that section 3553(e) violates due process because it "rests sole discretion" in the prosecutor regarding the circumstances under which a request will be made for a sentence below the mandatory sentence. Subsequent to the sentencing proceedings in this matter and the filing of the notice of appeal, we held in United States v. Ayarza, 874 F.2d 647 (9th Cir. 1989), that section 3553(e) does not violate due process insofar as it allows "only the Government to seek a departure from the minimum mandatory sentence to reflect a defendant's 'substantial assistance.' " Id. at 653. We reasoned that "it is rational for Congress to lodge some sentencing discretion in the prosecutor, the only individual who knows whether a defendant's cooperation has been helpful." Id. Thus, Adams' appeal is wholly frivolous in light of the law of this circuit. The motion of defense counsel to withdraw is GRANTED. The judgment is AFFIRMED.