UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 96-10602 Summary Calendar _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GABRIEL HUERTA,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas (5:95-CR-76) _________________________________________________________________

December 31, 1996

Before JONES, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:*

FACTUAL BACKGROUND

Gabriel Huerta (“Huerta”) was indicted on five counts for drug related charges.

Huerta pled guilty to counts 3 and 5 of the indictment, which charged him with distribution of

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. methamphetamine and possession with intent to distribute heroin, pursuant to a plea agreement he

and his attorney drew up. Per the agreement, the government dismissed counts 1, 2 and 4.

In his plea agreement, Huerta, with his trial attorney, had signed a factual resume that

admitted he had possessed and distributed 292.93 grams of methamphetamine (or 370.8 grams of

79% d-methamphetamine hydrochloride), and that he possessed and distributed 338.4 grams of

heroin, which were the offenses alleged in Counts 3 and 5. In addition to pleading guilty to counts

3 and 5, Huerta waived all rights in his plea agreement other than the right to an attorney.

Huerta was sentenced by the district court to 200 months as to each of the remaining

counts, to run concurrently. Huerta gave timely notice of his intent to appeal. Five days after this

notice, on May 22, 1996, Huerta’s trial counsel filed a motion to withdraw as counsel because he had

been elected a state district judge. This request was granted on the same day it was filed, and Ralph

H. Brock (“Brock”) was appointed as Huerta’s appellate counsel. On May 23, 1996, the federal

district court signed an order permitting Huerta to file amended notice of appeal, and Huerta appealed

based on the contention, inter alia, that pursuant to

(a), the sentence was

improperly imposed.

Now before this Court is Brock's motion for leave to withdraw pursuant to Anders

v. California,

(1967). Huerta has not filed a response to this motion.

DISCUSSION

Anders established standards for an appointed attorney who seeks to withdraw from

a direct criminal appeal on the ground that the appeal lacks an arguable issue. After a “conscientious

examination” of the case, the attorney must request permission to withdraw and must submit a “brief

referring to anything in the record that might arguably support the appeal.” Anders,

.

2 The attorney must isolate “possibly important issues” and must “furnish the court with references to

the record and legal authorities to aid it in its appellate function.” United States v. Johnson,

(5th Cir. 1976). After the defendant has had an opportunity to raise any additional points,

the court must fully examine the record and decide whether the case is frivolous. Anders,

.

Brock has briefed the following issues: 1) whether the district court properly accepted

Huerta’s guilty plea; 2) whether the statutory special assessment is constituti onal; 3) whether the

district court properly sentenced Huerta pursuant to the drug equivalency tables; and 4) whether the

district court properly considered uncharged drug quantities as relevant conduct in determining the

sentences. Huerta has had the opportunity to raise additional issues, but has not done so. This Court

must now examine the record and determine whet her t his case presents only frivolous issues for

appeal.

1. Whether the district court properly accepted Huerta’s guilty plea.

In the plea agreement, Huerta waived “his right to appeal from and/or contest the

judgment, conviction and sentence rendered in this case, on any ground including, but not limited to,

any ground otherwise allowed by

and

.” Huerta retained his right

to bring a direct appeal from the sentence based on any ground allowed by

. “A

plea of guilty admits all elements of a formal criminal charge and waives all nonjurisdictional defects

in proceedings leading to the conviction.” United States v. Smallwood,

, reh.

denied

(5th Cir. 1991). A valid guilty plea also constitutes a waiver of all “independent

claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty

plea.” Tollett v. Henderson,

(1973). Huerta has not challenged the validity of his

3 guilty plea, and there is no indication in the record that the plea was not knowing and voluntary.

Thus, the district court properly accepted Huerta’s plea of guilty.

2. Whether the statutory special assessment is constitutional.

The district court imposed a statutory special assessment of $50 per count on Huerta

pursuant to

. Brock has raised the question whether the legislation establishing the

mandatory special assessment was an unconstitutional “revenue bill” because it did not originate in

the House of Represent atives. However, as Brock points out, while the constitutionality of this

statute has been questioned, it was ultimately upheld by the Supreme Court in United States v.

Munoz-Flores,

(1990).

. Thus, this issue provides no basis for appeal.

3. Whether the district court properly sentenced Huerta pursuant to the drug equivalency tables.

Brock briefed the question whether the district court erred in sentencing Huerta

pursuant to the drug equivalency tables provided under the Federal Sentencing Guidelines. The

district court adopted Paragraph 30 of the Presentence Report, which converted the different drugs

for which Brock was convicted into an equivalent amount of marijuana to determine the base offense

level. This conversion process is set out in the drug equivalency tables of U.S.S.G. § 2D1.1 cmt. 10.

Brock notes that this Court has sustained the use of the drug equivalency tables to compute the base

offense level. See, e.g., United States v. Eastland,

(5th Cir.), cert. denied,

(1993), and United States v. Harris,

(5th Cir. 1991), cert. denied,

(1991). Because Huerta failed to raise this issue in the district court, it is reviewed for plain

error. See United States v. Calverley,

(5th Cir. 1994) (en banc) (observing that

if appellant shows clear or obvious error that affects his substantial rights, the appellate court has

4 discretion to correct errors that seriously affect the fairness, integrity, or public reputation of judicial

proceedings), cert. denied, --- U.S. ----,

(1995).

The staff attorney who wrote the screening memo for this case raised an additional

reason for contesting Huerta’s sentencing--the Presentence Report which the district court adopted

contained some typographical or computational errors. In the Presentence Report, the probation

officer found that Huerta had possessed and intended to distribute 438.1 grams of heroin, 248 grams

of cocaine, and 369.38 grams of methamphetamine. Under the Guidelines, one gram of heroin was

equal to one kilogram of marijuana, one gram of cocaine was equal to 200 grams of marijuana, and

one gram of methamphetamine was equivalent to 10 kilo grams of marijuana. Therefore, Huerta

presumably should have been found to have possessed the equivalent of 438.1 kilograms of marijuana

(for the heroin), 49.6 kilograms of marijuana (for the cocaine), and 3693.8 kilograms of marijuana

(for the methamphetamine). Instead, the report converted Huerta’s drugs into 438 kilograms, 49.8

kilograms, and 3,793.8 kilograms, respectively, for a total of 4,181.6 kilograms of marijuana, which

resulted in an offense level of 34.

As the staff attorney noted, however, these errors in the drug equivalency calculation

did not materially affect the probation officer’s offense level calculation. Although it was proper to

add together all of the drugs based on their equivalency in marijuana, the 369.38 grams of

methamphetamine, properly calculated and standing alone, would have resulted in an offense level

of 34, because the equivalent amount of marijuana (3693.8 kilograms) would have exceeded 3,000

kilograms. See U.S.S.G. § 2D1.1(c)(5) (offenses involving 3,000 to 10,000 kilograms of marijuana

have a base offense level of 34) & comment 6 (stating that “[w]here there are multiple transactions

or multiple drug types, the quantities of drugs are to be added [using the drug equivalency tables].”).

5 4. Whether the district court properly considered uncharged drug quantities as relevant conduct

in determining the sentences.

Huerta’s base offense level was calculated based on his possession with intent to

distribute or distribution of 438.1 grams of heroin, 348 grams of cocaine, and 369.38 grams of

methamphetamine. Ho wever, he was convicted only on Count 3 for distributing 292.93 grams of

methamphetamine (actual), and on Count 5, of possession with intent to distribute approximately

338.4 grams of heroin. Therefore, Brock raises the question whether the district court in sentencing

Huerta properly considered conduct outside the conduct charged in the counts to which Huerta pled

guilty.

Huerta conceded in the factual resume contained in his plea agreement that he was

“accountable” under U.S.S.G. § 1B1.3 for all drug quantities listed in the factual resume, including

those that were not charged in counts 3 and 5 of the indictment. The factual resume discloses that

Huerta engaged in a series of drug transactions with two undercover officers involving the sale of

heroin, cocaine, and methamphetamine. The factual resume recites that, over a four-month period

during the summer of 1995, Huerta and hi s co-conspirators sold or attempted to sell to the

undercover officers in separate transactions, 249 grams of cocaine, 49.8 grams of heroin, 76.45 grams

of methamphetamine, 292.93 grams of methamphetamine, 49.9 grams of heroin, and 338.4 grams of

heroin. At sentencing, Huerta’s trial counsel argued that Huerta’s criminal behavior was caused by

his drug addiction. Clearly, each of the transactions was part of the same course of conduct and was

properly considered as relevant to the offenses of conviction. Moreover, as Brock notes, the

6 consideration of the relevant conduct did not affect the severity of the sentence because the quantities

charged in counts 3 and 5, considered alone, would also have resulted in an offense level 34.1

This Court has observed that “a defendant’s base offense level for the offense of

conviction must be determined on the basis of all relevant conduct as defined in U.S.S.G. § 1B1.3.”

United States v. Vital,

(5th Cir. 1995). Considering uncharged conduct in

determining a defendant’s base offense level under § 1B1.3 is not unconstitutional. United States v.

Patten,

(5th Cir. 1994), cert. denied, --- U.S. ----,

(1995). See

Witte v. United States, --- U.S. ----,

(1995) (holding that relevant conduct

provisions merely enhance the punishment for the offense of conviction and do not violate double

jeopardy principles). The district court has wide discretion in the kind and source of information it

considers in imposing a sentence and in evaluating reliability. United States v. Young,

(5th Cir. 1992) (internal quotation and citation omitted), cert. denied,

, 980 (1993).

CONCLUSION

Brock is correct in arguing that none of these issues merits appeal. There are no other

issues worthy of discussion. Therefore, Brock’s motion for leave to withdraw is GRANTED.

Furthermore, Huerta’s frivolous appeal is DISMISSED.

1 The 292.93 grams of methamphetamine (actual) alleged in Count 3 are equivalent to 2,929.3 kilograms of marijuana, and the 338.4 grams of heroin alleged in Count 5 are equivalent to 338.4 kilograms of marijuana, making a total of 3267.7 kilograms of marijuana.

7