F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 22, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 05-2145
(New M exico)
PED RO RO SA LES-TR UJILLO, (D.Ct. No. CR-04-2219-JB)
Defendant - Appellant.
____________________________
OR D ER AND JUDGM ENT *
Before KELLY, O’BRIEN, and TYM KOVICH, Circuit Judges.
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.
Pedro Rosales-Trujillo pled guilty to illegal re-entry after deportation
subsequent to an aggravated felony conviction (second degree robbery) in
*
This order and judgment is not binding precedent except under the doctrines of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.
violation of 8 U.S.C. § 1326(a)(1), (a)(2) and (b)(2). 1 He was sentenced to
seventy-seven months imprisonment. 2 Counsel has filed an Anders 3 brief and
moves to withdraw. In this brief, counsel states he could find no arguably
meritorious claim to raise on Rosales-Trujillo’s behalf. Rosales-Trujillo has filed
his own pro se brief raising two issues: (1) his sentence is greater than necessary
to achieve the purposes of sentencing under 18 U.S.C. § 3553(a) and (2) his
sentence is excessive and unreasonable under United States v. Booker, 543 U.S.
220 (2005).
W e review sentences imposed post-Booker for reasonableness. United
States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). “[A] sentence that is
1
Initially, Rosales-Trujillo pled guilty to illegal reentry after deportation
subsequent to a felony conviction in violation of 8 U.S.C. § 1326(a)(1), (a)(2) and (b)(1).
Pursuant to the original plea agreement, Rosales-Trujillo and the government agreed to a
final adjusted offense level of 9. This agreement was conditioned on Rosales-Trujillo
having no felony conviction qualifying as a conviction under USSG §2L1.2(b)(1)(A), (B),
(C). Later, the government learned Rosales-Trujillo’s criminal history contained
convictions which could be classified as convictions under these provisions and moved to
revoke the plea agreement. Rosales-Trujillo subsequently moved to withdraw his guilty
plea, which was granted. A new information was filed charging him with the current
offense.
2
At the time he committed the current offense, Rosales-Trujillo was under a term
of supervised release for a prior illegal re-entry conviction. Because the commission of
the current offense constituted a violation of his supervised release, a petition to revoke
supervised release was filed. At the sentencing hearing concerning the current offense,
Rosales-Trujillo admitted to violating his supervised release and was sentenced to twelve
months imprisonment, said sentence to run concurrent to his seventy-seven month
sentence. He does not challenge his twelve-month sentence on appeal.
3
Anders v. California, 386 U.S. 738 (1967).
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properly calculated under the Guidelines 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 [18 U.S.C.] § 3553(a).” Id.
Rosales-Trujillo’s sentence was properly calculated under the guidelines.
The guideline applicable for a conviction under 8 U.S.C. § 1326 is USSG
§2L1.2. 4 USSG §2L1.2, comment. Under this guideline, the base offense level is
8. USSG §2L1.2(a). However, this guideline calls for a 16 level enhancement to
the base offense level if the defendant was previously deported or remained in the
United States after a felony conviction for a “crime of violence.” USSG
§2L1.2(b)(1)(A)(ii). The commentary to USSG §2L1.2 defines “crime of
violence” as including robbery. USSG §2L1.2, comment. (n.1(B)(iii)). Rosales-
Trujillo was convicted of Second Degree Robbery in 1995. He was subsequently
deported in 1997, twice in 1998, and again in 2001 and 2004. 5 Therefore, the 16
level enhancement was warranted, resulting in an adjusted offense level of 24.
Following a 3 level downward adjustment for acceptance of responsibility under
USSG §3E1.1, Rosales-Trujillo’s total offense level was 21. Pursuant to USSG
4
Rosales-Trujillo was sentenced pursuant to the 2004 edition of the United States
Sentencing Guidelines Manual to avoid any ex post facto issues. All citations to the
guidelines in this decision refer to the 2004 guidelines unless otherwise indicated.
5
The commentary explains: “A defendant shall be considered to be deported after
a conviction if the deportation was subsequent to the conviction, regardless of whether the
deportation was in response to the conviction.” USSG §2L1.2, comment. (n.1(A)(ii)).
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§4A1.1 and USSG Ch.5, Pt.A, his criminal history category was VI, resulting in a
guideline range of 77-96 months imprisonment. Thus, Rosales-Trujillo’s seventy-
seven month sentence is presumptively reasonable.
Rosales-Trujillo fails to rebut the presumption of reasonableness. His
rebuttal is limited to a conclusory allegation that his sentence is greater than
necessary to achieve the purposes of sentencing under 18 U.S.C. § 3553(a). The
district court considered the factors set forth in § 3553(a) and found a seventy-
seven month sentence reflected the seriousness of the offense, afforded adequate
deterrence, and protected the public. Specifically, the court noted that although it
was a significant sentence, Rosales-Trujillo’s criminal history and repeated re-
entries into the United States were also significant.
After a careful review of the record, we conclude the case is w holly
frivolous. W e GRANT counsel’s request to withdraw and DISM ISS the appeal.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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