FILED
United States Court of Appeals
Tenth Circuit
June 30, 2010
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-6278
v. (W.D. of Okla.)
FIDEL SALCEDO-HERRERA, (D.C. No. 5:09-CR-00180-R)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **
Fidel Salcedo-Herrera pleaded guilty to illegally reentering the United
States in violation of 8 U.S.C. § 1326(a). He appeals his conviction and sentence.
Salcedo-Herrera’s counsel, finding no meritorious grounds for an appeal, moves
to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). We have
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
jurisdiction under 28 U.S.C. § 1291. We GRANT counsel’s motion to withdraw
and DISMISS Salcedo-Herrera’s appeal.
I. Background
Salcedo-Herrera was removed from the United States in July 2001 after his
conviction for an aggravated felony. In April 2009, he was found to have
returned to the United States without consent and charged with illegal reentry in
violation of § 1326(a).
At a July 2009 hearing, Salcedo-Herrera pleaded guilty to the crime
charged. The applicable Sentencing Guidelines range for his offense was 46 to 57
months. Through counsel, Salcedo-Herrera requested both a downward departure
based on his health and age and a downward variance based on the factors found
in 18 U.S.C. § 3553(a). Noting Salcedo-Herrera’s personal characteristics,
criminal history, and repeated returns to the United States, the district court did
not grant those requests. The district court sentenced Salcedo-Herrera to 48
months’ imprisonment and three years of supervised release. The district court
also ordered him to pay a $100.00 special assessment fee.
Following Salcedo-Herrera’s timely notice of appeal, his counsel filed an
Anders brief explaining that, after reviewing the record and completing the
necessary research, he determined the appeal had no merit. Salcedo-Herrera has
not filed a response to that brief. The government filed a notice of its intention
not to file an answer brief in this appeal.
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II. Discussion
Under Anders, defense counsel may “request permission to withdraw where
counsel conscientiously examines a case and determines that any appeal would be
wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).
If counsel makes that determination, he may “submit a brief to the client and the
appellate court indicating any potential appealable issues based on the record.”
Id. The client may also submit arguments to the court in response. We must then
fully examine the record “to determine whether defendant’s claims are wholly
frivolous.” Id. If we find they are, we may dismiss the appeal.
The only possible bases for Salcedo-Herrera’s appeal are the district court’s
decision to accept his guilty plea and the substantive reasonableness of his
sentence. Because Salcedo-Herrera did not assert any error during his Rule 11
sentencing hearing, nor move to withdraw his guilty plea, we review any
challenges to the plea hearing for plain error. See United States v. Cano-Varela,
497 F.3d 1122, 1131 (10th Cir. 2007). “To show Rule 11 plain error, a defendant
must show (1) error that (2) is plain which (3) affected his substantial rights and
(4) seriously affected the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted).
Having carefully reviewed the record, we conclude the district court did not
commit plain error in accepting Salcedo-Herrera’s guilty plea. At the change of
plea hearing, Salcedo-Herrera indicated he was alert, was proceeding voluntarily,
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understood the rights he was waiving by pleading guilty, was not under the
influence of any substance, and understood the district court could sentence him
as if he had been convicted at trial. The district court also determined the factual
basis for the guilty plea and complied with all other requirements of Rule 11.
Accordingly, any appeal from the Rule 11 hearing would be wholly frivolous.
We review sentences for procedural and substantive reasonableness. See
United States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). When a defendant
is sentenced within a properly-calculated Guidelines range, the sentence “is
entitled to a rebuttable presumption of reasonableness.” Id. at 1054. “The
defendant may rebut this presumption by demonstrating that the sentence is
unreasonable in light of the other sentencing factors laid out in § 3553(a).” Id. at
1055. Salcedo-Herrera’s counsel asserts the district court calculated the
Guidelines range properly and made no other procedural errors. We agree, and
thus we presume the sentence to be reasonable. We further find the § 3553(a)
factors do not provide a basis for rebutting the presumption in this case. While
Salcedo-Herrera requested a downward departure based on his age and health and
a downward variance under § 3553(a), the district court found Salcedo-Herrera’s
criminal history and repeated returns to the United States weighed against any
further mitigation of his sentence. Seeing no substantive error, we conclude
Salcedo-Herrera’s sentence is reasonable.
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III. Conclusion
We conclude no meritorious appellate issue exists. Accordingly, we
GRANT counsel’s motion to withdraw and DISMISS Salcedo-Herrera’s appeal.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Circuit Judge
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