FILED
United States Court of Appeals
Tenth Circuit
November 14, 2007
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-2077
ARTURO DIAZ-ARREOLA, (D.C. No. CR-06-772-JAP )
(D. New Mexico)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
Defendant Arturo Diaz-Arreola pled guilty to one count of reentry by a deported
alien previously convicted of a felony, in violation of 8 U.S.C. §§ 1326(a)(1), (a)(2), and
*
This order and judgment is not binding precedent, except under the doctrines of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.
(b)(1), and was sentenced to a term of imprisonment of forty-six months. On appeal,
Diaz-Arreola’s counsel has filed an Anders brief and a motion to withdraw as counsel.
See Anders v. California, 386 U.S. 738, 744 (1967). Diaz-Arreola has filed a pro se
response to the Anders brief contending that he should have received a significantly lower
sentence pursuant to the terms of a written plea agreement he entered into with the
government. The government has declined to file a brief. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we conclude there are no meritorious issues for appeal, and
thus grant counsel’s motion to withdraw and dismiss the appeal.
I.
Diaz-Arreola was charged by information with a single count of reentry by a
deported alien previously convicted of a felony, in violation of 8 U.S.C. §§ 1326(a)(1),
(a)(2), and (b)(1). On April 13, 2006, Diaz-Arreola pled guilty, pursuant to a written plea
agreement with the government, to the charge alleged in the indictment. In the plea
agreement, Diaz-Arreola and the government stipulated that, under the Sentencing
Guidelines, Diaz-Arreola’s offense level would be nine (9). Notably, however, that
stipulation hinged upon the assumption that Diaz-Arreola had no prior felony convictions
that would have required enhancements to Diaz-Arreola’s base offense level pursuant to
U.S.S.G. § 2L1.2(b)(1)(A), (B), or (C). In addition, the plea agreement provided that if
the government learned, prior to sentencing, that Diaz-Arreola had one or more such
convictions, the government would have the right to withdraw the plea agreement.
When the presentence investigation report (PSR) was subsequently prepared, it
-2-
revealed that Diaz-Arreola in fact had two prior felony convictions. Specifically, the PSR
indicated that on September 11, 1991, Diaz-Arreola was convicted in Texas state court of
burglary of a habitation, an offense that qualified as a “crime of violence” under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). ROA, Vol. II, PSR at 4-5. In addition, the PSR indicated that on
June 7, 2004, Diaz-Arreola pled guilty in federal court in New Mexico to transporting
illegal aliens, an offense that qualified as “alien smuggling” under U.S.S.G. §
2L1.2(b)(1)(A)(vii). In light of these offenses, the government filed a motion asking the
district court to reject the written plea agreement. The district court granted the motion.
Diaz-Arreola subsequently chose to enter another plea of guilty to the single count
alleged in the information, this time without benefit of a written plea agreement. The
PSR, which remained in place, calculated a total offense level of twenty-one (21), a
criminal history category of IV, and a resulting guideline range of fifty-seven (57) to
seventy-one (71) months. Diaz-Arreola’s counsel filed a sentencing memorandum
requesting that the district court “find that the guideline range as calculated by probation
[wa]s unreasonable and that a lesser sentence would be more reasonable.” ROA, Vol. I,
Doc. 41 at 2-3. In support of this request, Diaz-Arreola’s counsel noted that Diaz-Arreola
had been gainfully employed and was very active in his church prior to his arrest, and
while in custody in connection with the case had attended hundreds of hours of training
and spent time informally counseling other prisoners.
At sentencing, the district court asked the government if it “would have an
objection to a sentence under 18 United States Code Section 3553 independent of the
-3-
guidelines and below the guideline range.” ROA, Vol. III at 3. The government
indicated it had “tendered an offer to the defendant of an offense level 19 and Criminal
History Category IV,” which would have resulted in a guideline range of “46 to 57
months.” Id. The government further indicated that it “would have no objection if the
court wanted to sentence [Diaz-Arreola] to a sentence of 46 months.” Id. The district
court ultimately imposed a sentence of forty-six months. Id. at 9 (“It’s my intent to
impose a sentence under 18 United States Code Section 3553(a) independent of the
United States Sentencing Guidelines, and to impose a sentence of 46 months to which the
government does not object.”). In doing so, the district court rejected Diaz-Arreola’s own
request for “a further reduction on th[e] sentence because [he] ha[d] [his] family awaiting
[him] . . . .” Id. at 10.
II.
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). In such a
case, “counsel must submit a brief to the client and the appellate court indicating any
potential appealable issues based on the record.” Id. The client is then permitted to
submit arguments to the court in response. The court must then fully examine the record
“to determine whether defendant’s claims are wholly frivolous.” Id. If so, the court may
dismiss the appeal.
Here, Diaz-Arreola’s counsel concedes that the sentence imposed by the district
-4-
court was reasonable. After conducting our own review of the record, we agree. The
record establishes that the district court properly calculated Diaz-Arreola’s guideline
range, considered the relevant sentencing factors under 18 U.S.C. § 3553(a), and
ultimately varied downward from the guideline range based on the factors cited by Diaz-
Arreola in his sentencing memorandum and authorized by § 3553(a). Nothing in the
record indicates that a further downward variance was warranted.
Diaz-Arreola, in his pro se response, argues that the district court erred in rejecting
the plea agreement he originally entered into with the government. In particular, he
argues that “he has in no way violated the terms of the agreed to plea agreement,” and he
asserts that “the agreed to plea agreement is a fair disposition of this case.” Response at
2. Thus, he asks us to reverse his sentence and remand for imposition of a sentence in
accordance with the terms of the plea agreement. Id. at 3.
We reject Diaz-Arreola’s arguments as frivolous. As noted, the plain language of
the plea agreement indicated that the government’s stipulation to a total offense level of
nine was dependent upon Diaz-Arreola not having any prior convictions that required
enhancements under U.S.S.G. § 2L1.2(b)(1)(A), (B), or (C). The plain language of the
plea agreement further afforded the government the unilateral right to withdraw the plea
agreement in the event that the presentence investigation revealed the existence of any
such convictions. Thus, we conclude the district court did not err in rejecting the plea
agreement due to the uncontroverted existence of two such convictions. In turn, Diaz-
Arreola is clearly not entitled to be sentenced pursuant to the terms of the now-rejected
-5-
plea agreement.
Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
-6-