Unpublished Disposition, 921 F.2d 281 (9th Cir. 1989)

MEMORANDUM^** 

Appellant's counsel filed an appeal in accordance with Anders v. California, 386 U.S. 738, U.S. reh'g denied, 388 U.S. 924 (1967), stating that he had examined the record and determined that it would be frivolous to pursue any issues on appeal. Counsel raises two possible issues on appeal: lack of voluntariness of appellant's plea bargain and appellant's sentencing at the top of the guidelines range. Counsel concludes that there is no merit to an appeal of either of these issues or any other issues in the case. We agree and affirm the district court's conviction.

Appellant, Juan Gonzales-Oregel, was indicted on April 5, 1989 for (count 1) conspiracy to possess marijuana with intent to distribute and (count 2) importation of approximately 65 pounds of marijuana into the United States from Mexico. Appellant was released on bail on April 12 but failed to appear. He was rearrested on October 19, 1989 pursuant to an arrest warrant. On November 22, 1989, appellant pled guilty to the indictment and the bail jumping charge. He received consecutive sentences of 21 months on the marijuana charge and 12 months on the bail jumping charge.

The first issue appellant raises is whether his plea bargain was voluntary. Appellant's counsel admits that there is no evidence in the record that appellant's guilty plea was not voluntary, knowing and intelligent. At sentencing appellant claimed that "I was threatened that something would happen to me if I came here for sentencing." RT 2/2/90 at 4. Apparently, appellant received an anonymous letter threatening him with death if he appeared for sentencing. He stated that this letter led to his failure to appear for the pretrial proceedings. Presentence Report at 5. These threats do not, however, negate the voluntariness of his guilty plea. They merely indicate that others, perhaps his confederates in the crime of importing marijuana, did not want him to appear.

The record does not reveal any protestations of innocence or exculpatory statements that would cast doubt upon the guilty plea. See United States v. Gomez-Gomez, 822 F.2d 1008, 1011 (11th Cir. 1987), cert. denied sub nom. Villalobos-Lorduiz v. United States, 484 U.S. 1028 (1988). All procedural requirements were complied with and appellant never asked prior to or during sentencing to withdraw his guilty plea. Appellant's guilty plea was proper and may not be withdrawn at this time.

The second issue raised on appeal is whether appellant's sentence at the top of the guidelines range was excessive. The base offense level for importing 65 pounds of marijuana is 18, with a possible sentence of 27-33 months. USSG, Guidelines Manual, Sec. 2.D1.1 (Nov. 1990). Appellant received a two point reduction for acceptance of responsibility and a two point reduction for being a minor participant, for an adjusted level 14, which was the level stipulated by the plea bargain. He has no criminal history. The sentencing range for this category is 14-21 months. USSG, Ch. 5, Pt.A. His sentence to 21 months in jail was at the top of the range for level 14, but was still within the sentencing range contemplated by the plea bargain and permitted by the sentencing guidelines.

Appellant was also sentenced to serve 12 months in jail on the bail jumping charge, the sentence to run concurrently with the importation of marijuana charge. The base offense level for failure to appear by defendant is six. USSG, Sec. 2J1.6. That level was raised by six because it involved a felony punishable by five to fifteen years in prison, USSG, Sec. 2J1.6(b) (2) (B), then was lowered by two for acceptance of responsibility. The resulting offense level was ten which prescribes 6-12 months in jail for an offender with no criminal history. His sentence on this count was within the guidelines range and the scope of the plea bargain. Appellant raises no colorable claim of improper sentencing under the guidelines or in violation of the plea bargain.

The district court judgment is AFFIRMED. The appeal is dismissed and counsel's request to withdraw as attorney is granted in accordance with Anders v. California, 386 U.S. at 744.

AFFIRMED.