United States v. Hernandez-De Jesus

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 8, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 06-2128
v.
(D.C. No. CR-No. 05-2465 MV)
(New Mexico)
CARLOS HERNANDEZ-DE JESUS
Defendant-Appellant.

ORDER AND JUDGMENT *

Before McWILLIAMS, Senior Circuit Judge, ANDERSON, Senior Circuit Judge, and
BRORBY, Senior Circuit Judge.

Carlos Hernandez-De Jesus (the defendant), was charged in a one count indictment

filed in the United States District Court for the District of New Mexico, with Re-entry of

a Deported Alien in violation of 8 U.S.C. § § 1326(a)(1) and (2) and 1326(b)(2).

Pursuant to a plea agreement with the government, the defendant pled guilty to the crime

charged. As a part of the plea agreement, defendant waived, inter alia, many of his

constitutional rights, but did not waive his right to appeal the sentence which he later

*
This order and judgment is not binding precedent, except under the doctrines of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 appellate record, this panel has determined unanimously to grant
the parties’ request for a decision on the briefs without oral argument. See Fed. R. App.
P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument.
received. The matter was then referred to the probation department for a Presentence

Report (PSR).

The PSR set defendant’s base offense level at 8 and then, pursuant to U.S.S.G.

2L1.2(b)(1)(A), increased that level by 16 levels, i.e., to 24 levels, based on the fact that

the defendant had been previously deported from the United States to Mexico after his

conviction for a felony offense that was a “crime of violence.” The PSR also

recommended that defendant’s offense level be reduced by three levels for his acceptance

of responsibility, setting his adjusted offense level at 21. The PSR recommended the

defendant’s criminal history category be set at III. The U.S.S.G. set the guideline range

for an offense level of 21 and a criminal history category of III at 46 to 57 months

imprisonment.

As we understand the record, neither the defendant nor the government filed any

“objections” to the PSR. However, prior to sentencing, the defendant’s counsel did file

with the district court a Sentencing Memorandum in which he, on the basis of United

States v. Booker, 543 U.S. 220 (2005), asked the district court to impose a sentence of

“less than 46 months,” the minimum sentence under the sentencing guidelines. At the

time of defendant’s sentencing, the guidelines, under Booker, were only advisory, and

not mandatory. It was counsel’s contention that a sentence of less than 46 months would

be “reasonable” under 18 U.S.C. §3553(a) . In support of his “reasonable” argument,

counsel stated that the 16 level increase of defendant’s base offense level was, under the

circumstances, “excessive” and that any increase should be only 8 levels and not 16.

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(With an offense level of 13, and a criminal history category of II, the guidelines

sentencing range would have been 15 to 21 months imprisonment.)

The government filed a response to defendant’s request that he be sentenced to less

than 46 months. At the outset of that response, the government stated that, all things

considered, 46 months imprisonment would be a “reasonable” sentence under 18 U.S.C.

§ 3553(a). At the same time, the government stated that it “will not oppose a departure to

a criminal history category of Level II.”

At sentencing, the district court agreed with counsel that defendant’s criminal

history category should be II and not III, as had been recommended in the PSR.

However, the district court declined to lower defendant’s adjusted offense level from 21

to 13, as suggested by defendant’s counsel. Then the district court, acting on the basis

that an offense level of 21, coupled with a criminal history category of II, resulting in an

advisory guideline range of 41 to 51 months, concluded that there should be a downward

departure from that guideline range and imposed a sentence of 36 months imprisonment.

In so doing, the district court indicated that such, in its view, comported with the

reasonableness requirement of 18 U.S.C. § 3553(a). Counsel, at the request of the

defendant, then filed a timely notice of appeal, the defendant indicating to counsel that he

wished to challenge the length of his 36-month sentence.

It is in this general setting that the defendant’s counsel has filed in this court a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), and a motion to withdraw as

counsel. In his brief counsel states that after a review of the record in the case,

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appellant’s appeal is frivolous and should be dismissed, and further that he be allowed to

withdraw. We agree.

In Anders, supra, the Supreme Court spoke as follows:

. . . if counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should advise the court
and request permission to withdraw. That request must,
however, be accompanied by a brief referring to anything in
the record that might arguably support the appeal. A copy of
counsel’s brief should be furnished the indigent and time
allowed him to raise any points that he chooses; the court--not
counsel–then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous.
If it so finds it may grant counsel’s request to withdraw and
dismiss the appeal insofar as federal requirements are
concerned, or proceed to a decision on the merits, if state law
so requires.

Id. at 744.

Pursuant to our reading of Anders, supra, in United States v. Snitz, 342 F.3d 1154,

1157 (10th Cir. 2003), we spoke as follows:

The basic principle underlying the cited cases is that, aside
from when an appellant elects to proceed pro se, every direct
criminal appeal must be briefed on the merits by counsel and
decided accordingly by the court unless, after a thorough
review of all pertinent proceedings, the appeal is determined
initially by counsel and then independently by the court to be
wholly frivolous. See generally Smith v. Robbins, 528 U.S.
259, 279-80 (discussing and applying Court’s present
understanding of its ‘chief cases in this area,’ including
Anders, Penson, and McCoy.

In that same case, at 1158, citing McCoy v. Court of Appeals of Wisc. Dist.

1, 486 U.S. 429, 438-39 (1988), we then spoke as follows:

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As for the professional responsibilities of counsel, the
appellate lawyer must master the trial record, thoroughly
research the law, and exercise judgment in identifying the
arguments that may be advanced on appeal. . . . Only after
such an evaluation has led counsel to the conclusion that the
appeal is ‘wholly frivolous’ is counsel justified in making a
motion to withdraw. This is the central teaching of Anders.

McCoy, 486 U.S. at 438-39.

And finally, in Snitz at 1158, we then spoke as follows:

The court’s obligation does not end once it concludes that counsel
reviewed the record and found no error. Because it is ‘the court-not
counsel’ that ultimately ‘decides whether the case is wholly
frivolous,’ Anders, 386 U.S. at 744, counsel’s assessment triggers the
final responsibility of the court, which must ‘itself conduct a full
examination of all the proceeding[s] to decide whether the case is
wholly frivolous.’ Penson v. Ohio, 488 U.S. 75, 80 (1988) (quoting
Anders, 386 U.S. at 744).

We conclude that in the instant case, counsel for the defendant has followed the

teaching of Snitz. Discharging our responsibility under Snitz, based on a full examination

of the record before us, and a consideration of the Anders brief filed by counsel, we

conclude that there are no non-frivolous issues upon which the defendant has a basis for

appeal. United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).

Appeal dismissed and motion to withdraw granted.

Entered for the Court

Robert H. McWilliams
Senior Circuit Judge