Tenth Emphasizes Counsel's Duties to the Court

US v. Mendez-Zavala, No. 08-2178, 3/26/09 (unpublished) - Defendant pled guilty to conspiracy to possess heroin with intent to distribute. He got a 2-level increase at sentencing for possessing a gun during a purchase of heroin from an undercover cop, based on the testimony at sentencing of the cop. Defendant challenged the 2-level enhancement on appeal based on a comment the district court had made during sentencing of a codefendant, who got a 2-level enhancement for supervisory role, in which the court was explaining why co-d got a higher sentence than defendant. Defendant tried to twist that comment into an argument that his own 2-point bump was really based on a role adjustment, of which he got no prior notice. That was emphatically not the case. Not only was the sentence affirmed, but the 10th took “this moment to stress that counsel has a duty of candor to the court” and that “[f]actual contentions on appeal should be supported in the record.” It characterized the argument as bordering on the frivolous. Polite, indeed.