F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 20 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-2141
(D.C. No. CR-01-1092-JC)
MAFFIOLI JAEN DAVILMAR- (D. New Mexico)
JEHOVANY, also known as
Antonio Souza,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY,
Senior Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Appellant Mr. Davilmar-Jehovany pled guilty to re-entry of an illegal
alien after being deported for a prior aggravated felony conviction, in violation
of 8 U.S.C. § 1326(b)(2). The presentence report determined that
Mr. Davilmar-Jehovany’s guideline offense level was 23, with a criminal history
of III, yielding a guideline range of fifty-seven to seventy-one months. The
district court adjusted the offense level to 21 after finding no obstruction of
justice. The adjusted guideline range was forty-six to fifty-seven months.
Mr. Davilmar-Jehovany was sentenced to a term of imprisonment of fifty months,
which is within the guideline range.
Mr. Davilmar-Jehovany appeals his sentence. A jurisdictional issue was
raised by this court regarding the timeliness of Mr. Davilmar-Jehovany’s notice of
appeal. The appeal was partially remanded to the district court to rule on an
extension of time by the defendant to file the notice of appeal. See Fallen v.
United States, 378 U.S. 139, 142-144 (1964); United States v. Lucas, 597 F.2d
243 (10th Cir. 1979). On remand, the district court granted the extension of time.
We have jurisdiction to hear this appeal.
Mr. Davilmar-Jehovany’s appellate counsel has filed a brief pursuant to
Anders v. California, 1 386 U.S. 738 (1967). In his Anders brief, counsel
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Anders holds that if counsel finds a case to be wholly frivolous after
conscientious examination, he may so advise the court and request permission to
(continued...)
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concludes the district court correctly applied the guideline range and sentenced
his client. Mr. Davilmar-Jehovany submitted a response to the Anders brief, and
argues (1) the district court used the wrong edition of the sentencing guidelines;
(2) the district court believed it lacked discretion to downward depart; and
(3) clerical error in the judgment. We review the district court’s interpretation
and application of the sentencing guidelines de novo, and the court’s underlying
findings of fact for clear error. United States v. Pappert, 112 F.3d. 1073, 1078
(10th Cir. 1997).
Mr. Davilmar-Jehovany contends he was not sentenced under the guidelines
in effect at the time of his sentencing, as is customary. He was sentenced on
April 29, 2002. The presentence report clearly states the November 1, 2001
edition of the United States Sentencing Commissions Guideline Manual was used
in computing Mr. Davilmar-Jehovany’s sentence. Under USSG
§ 2L1.2(b)(1)(A)(ii) in the November 1, 2001 edition, if the defendant was
previously deported after a conviction for a felony that is a crime of violence, the
base level is increased by 16 levels. Application Note 1.(B)(ii) states a crime of
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(...continued)
withdraw. Counsel must also submit to the court a brief referring to anything in
the record arguably supportive of the appeal. The brief is then served upon the
client, who may then raise any point he chooses, and this court thereafter
undertakes a complete examination of all proceedings and decides whether the
appeal is in fact frivolous. If it so finds, it may grant counsel’s request to
withdraw and dismiss the appeal. Anders , 386 U.S. at 744.
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violence includes both an offense “that has as an element of the use, attempted
use, or threatened use of physical force against the person of another;” and
“forcible sex offenses (including sexual abuse of a minor).” Appellant’s felony
conviction was for Sexual Assault of a Child. Accordingly, his base level was
correctly increased by sixteen levels.
Mr. Davilmar-Jehovany’s second argument is that the district court did not
believe it had the discretion to downward depart. “[U]nless the judge’s language
unambiguously states the judge does not believe he has authority to downward
depart, we will not review his decision.” United States v. Rodriguez, 30 F.3d
1318, 1319 (10th Cir. 1994). At sentencing, appellant did not articulate a basis
for a downward departure, accordingly, the district court could not ignore the
guidelines. R. Vol. 3 at 5-6.
Lastly, Mr. Davilmar-Jehovany claims the district court imposed an
unsupervised release term of two years, yet in the judgment the unsupervised
release term is indicated as two to three years. The judgment unambiguously
states an unsupervised release term of two years.
After review of the entire proceedings, we conclude that the record
establishes no non-frivolous ground for appeal. The appeal is therefore
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DISMISSED and counsel’s motion to withdraw is GRANTED.
Mr. Davilmar-Jehovany’s pro se Motion to Appoint Attorney is denied.
Entered for the Court
John C. Porfilio
Circuit Judge
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