FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS November 2, 2017 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 16-3298 (D. C. No. 2:14-CR-20066-JAR-2) GILBERTO CANO-BAHENA, (D. Kan.) Defendant - Appellant. ORDER AND JUDGMENT* Before BRISCOE, McHUGH, and MORITZ, Circuit Judges. Defendant Gilberto Cano-Bahena pleaded guilty to one count of aiding and abetting a codefendant in knowingly and intentionally possessing with the intent to distribute five grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(b), and 18 U.S.C. § 2. Cano-Bahena then unsuccessfully moved to withdraw his plea. Thereafter, he was sentenced to a term of imprisonment of 108 months, to be followed by a four-year term of supervised release. Cano-Bahena now appeals, challenging the district court’s denial of his motion to withdraw his plea, as well * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. as two aspects of his sentence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. I Factual background In June and July 2014, law enforcement agents from the Kansas Bureau of Investigation and the United States Department of Homeland Security, Immigration and Customs Enforcement, Homeland Security Investigations (DHS) used a confidential informant (CI) to make two controlled purchases of methamphetamine from an individual named Emanuel Godinez-Perez in Kansas City, Kansas. Law enforcement agents subsequently arrested Godinez-Perez, along with Cano-Bahena and Jose Menera-Alvarez, both of whom were involved with Godinez-Perez in the distribution of the methamphetamine. During the course of the investigation, law enforcement agents seized ten different quantities of methamphetamine, totaling approximately 1,505.26 grams. Laboratory testing revealed that these quantities of methamphetamine ranged in purity from 96.1% to 100% pure. Based upon these purity figures, the net weight of the methamphetamine was estimated to be 1,479.8 grams. Procedural background On July 25, 2014, a criminal complaint was filed against the three men. Of relevance here, Count One of the complaint charged all three with conspiring to distribute and possess with the intent to distribute more than 500 grams of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. 2 §§ 841(a)(1), (b)(1)(A)(viii), and 18 U.S.C. § 2, and Count Four charged all three with possession with intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), and 18 U.S.C. § 2. On August 6, 2014, a federal grand jury returned an indictment that essentially mirrored the criminal complaint. On May 27, 2015, Cano-Bahena entered a plea of guilty, pursuant to a two-page written plea agreement, to one count of aiding and abetting Menera-Alvarez in knowingly and intentionally possessing with the intent to distribute five grams or more of ...
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