United States v. Godinez

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 95-50789 Summary Calendar _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROY JUAREZ GODINEZ,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (SA-94-CR-295-(2)) _________________________________________________________________ August 29, 1996

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM:*

Appellant Godinez was sentenced to two 135-month

concurrent terms of imprisonment after a jury convicted him of

conspiracy to distribute and distribution of cocaine. On appeal,

his court-appointed counsel argues that Godinez’s offense level

should be reduced by two because the evidence was insufficient to

establish that Godinez was a manager in the offense. Attorney

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. Padilla also asserts that Godinez urged him to argue the

sufficiency of evidence to convict, but pursuant to Anders v.

California, 386 U.S. 738, 744 (1967), Padilla concludes that issue

is meritless. Finding no reversible error, we affirm.

The status of manager under the Guidelines is reviewed in

this court for clear error. Based on the testimony of co-

defendants and the entirety of the transactions in which Godinez

was implicated, there is no error in the court’s finding that

Godinez was a manager. U.S.S.G. § 3B1.1(c).

Moreover, the evidence was sufficient to convict Godinez.

Even though much of the incriminating testimony was given by co-

defendants who had pleaded guilty at the time of Godinez’s trial,

the jury was entitled to credit their testimony in whole or in

part. Confirmation of Godinez’s participation came from the

testimony of the undercover officer.

The court notes that court-appointed defense counsel

seems to have misunderstood the requirements of Anders in briefing

this appeal. Anders holds that after conscientiously reviewing the

record and identifying to the court any potential legal issues on

appeal, counsel may move to withdraw if he determines that an

appeal would be “wholly frivolous.” Anders, 368 U.S. at 744. If

counsel believes even one issue is meritorious, as he did here,

briefing pursuant to Anders is not allowed. Notwithstanding

counsel’s error in this case, the court was alerted to and did

2 consider the sufficiency of the evidence as suggested by appellant

Godinez to his counsel. Counsel’s misinterpretation of Anders in

this case was harmless error at best.

AFFIRMED.