FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA,  No. 07-10368 Plaintiff-Appellee, D.C. No. v.  CR-05-00546-NVW District of Arizona, JOSE ANGEL BELTRAN-MORENO, aka El Tan Beltran, Phoenix Defendant-Appellant.  UNITED STATES OF AMERICA,  No. 07-10370 Plaintiff-Appellee, D.C. No. v. CR-05-00546-NVW ABRAHAM BELTRAN-MORENO, aka  District of Arizona, Phoenix Abram aka Abram Beltran-Moreno aka Adrian Beltran-Figueroa, Defendant-Appellant.  ORDER Filed March 10, 2009 Before: Procter Hug, Jr., Stephen Reinhardt and A. Wallace Tashima, Circuit Judges.

ORDER The opinion filed February 10, 2009 is amended as follows: 1. At Slip Op. 1589, replace “on top of any other sentence” with <in addition to any other sentence>.

2. At Slip Op. 1589, delete the text of footnote 1 and replace it with: 2983 2984 UNITED STATES v. BELTRAN-MORENO <We note that there appears to be an error in the for- mal judgments of conviction for both defendants.

Compare Reporter’s Transcript of Proceedings (Sta- tus Conference/Change of Plea) at 35-37, United States v. Beltran-Moreno, No. 05-00546-NVW (D.

Ariz. March 8, 2007) (No. 427), and Superceding Indictment at 3, Beltran-Moreno, No. 05-00546- NVW (D. Ariz. June 8, 2005) (No. 43) (showing sur- plusage crossed-out), with Judgment in a Criminal Case at 1, Beltran-Moreno, No. 05-00546-NVW (D.

Ariz. July 7, 2007) (Nos. 392, 393) (formal judg- ments including surplusage). The error is of no sig- nificance for purposes of this appeal.> 3. At Slip Op. 1590, replace “the district judge exercised his discretion under 18 U.S.C. § 3553(a) to depart downward from the Guidelines recommendation, sentencing the defen- dants to thirty-five years in prison instead of imprisoning them for the rest of their lives as the Guidelines suggest, but no longer mandate” with <the district judge exercised his dis- cretion under 18 U.S.C. § 3553(a) and imposed a sentence of thirty-five years, which was well below the Guidelines recom- mendation of a life sentence>.

4. At Slip Op. 1591, replace “For reasons beyond our under- standing, the Beltrans have appealed their sentences, arguing that instead of imposing a mandatory minimum of twenty years, the district court should have consolidated the two § 924(c) sentences into a single five-year term and imposed a fifteen-year minimum sentence for each of them.” with <For reasons beyond our understanding, the Beltrans appealed their sentences, and counsel argued that instead of imposing a man- datory minimum of twenty years, the district court should have imposed only a single five-year sentence under § 924(c) and therefore a total mandatory minimum of fifteen years for each of them.>.

5. At Slip Op. 1591-92, replace “In this case, the two § 924(c) counts are respectively predicated on possession with UNITED STATES v. BELTRAN-MORENO 2985 intent to distribute methamphetamine, 21 U.S.C. §§ 841(a), (b)(1)(A)(viii), and possession with intent to distribute cocaine, id. §§ 841(a), (b)(1)(A)(iii).” with <In this case, the two § 924(c) counts respectively charged the defendants with possessing a firearm on March 12, 2005 in furtherance of their possession with intent to distribute methamphetamine, 21 U.S.C. §§ 841(a), (b)(1)(A)(viii), and with possessing a firearm on June 22, 2005 in furtherance of their possession with intent to distribute cocaine, id. §§ 841(a), (b)(1)(A)(iii); both firearm counts also incorporated the drug conspiracy count to which the defendants pled guilty.> 6. At Slip Op. 1592, replace “rather, they appear simply to be ignorant of the controlling law” with <rather, Jose’s coun- sel at least appears simply to be ignorant of the controlling law.>. To that amended sentence, attach the following new footnote: <Jose’s attorney argues, without mentioning the con- trary holding in Smith, that “the statute does not . . . require each firearm sentence to . . . be consecutive to each [other] firearm sentence.” Abraham’s attor- ney presents a slightly different claim, albeit with the same result. He argues that the predicate offenses for Abraham’s two gun charges are not distinct because the factual basis adduced by the government during Abraham’s plea colloquy establishes his guilt with respect to only a single drug conspiracy count and no more. While not legally frivolous, this argument is clearly belied by the very portion of the record Abra- ham’s counsel quotes in his brief. Abraham’s coun- sel asserts that the factual basis for Abraham’s plea establishes that the first firearm count was predicated on the drug conspiracy count. The record demon- strates that the prosecutor established that Abra- ham’s second gun count was predicated on “the crime of possession [with intent to distribute] methamphetamine.” Under our circuit law as it has 2986 UNITED STATES v. BELTRAN-MORENO existed for over ten years, “possession with intent to distribute and conspiracy [to possess with intent to distribute] are two separate offenses for section 924(c) purposes.” United States v. Lopez, 37 F.3d 565, 570 (9th Cir. 1994), vacated on other grounds 516 U.S. 1022 (1995); see United States v. Andrews, 75 F.3d 552, 557-58 (9th Cir. 1996) (reaffirming Lopez’s § 924(c) sentencing analysis). Accordingly, the conclusion that Abraham is properly subject to two consecutive § 924(c) sentences is inescapable.> 7. At Slip Op. 1593, replace “strong warning for the defen- dant’s appellate counsel” with <strong warning for appellate counsel>. In the following sentence, at Slip Op. 1594, insert the word <here> between “have counsel” and “avoided a dis- position”.

8. At Slip Op. 1594, insert the words <the record and> between “research” and “the relevant case law”. In the sen- tence after that, delete the words “one has been”.

9. At Slip Op. 1594, replace the sentence “We also remind counsel of their ethical obligations not to present arguments to this court that are legally frivolous.” with the following two sentences: <We also remind counsel of their ethical obliga- tions not to present frivolous arguments to this court. If, after counsel have researched the governing law and advised their clients of the lack of merit in their appeal and of the poten- tially severe adverse consequences they face, their clients still insist on going forward, counsel are best advised to file a brief with this court as set forth in Anders v. California, 386 U.S. 738, 744 (1967).>.

No subsequent Petitions for Rehearing or Rehearing En Banc shall be permitted in No. 07-10368. The Petition for Rehearing and Suggestion For Rehearing En Banc in No. 07- 10370 is due by March 26, 2009 consistent with the Clerk’s Order filed February 25, 2009.

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