FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 26, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-2238
MIGUEL SILVA-TORRES, (D.C. No. CR-07-1374-JAP)
(D. New Mexico)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
Defendant Miguel Silva-Torres pled guilty to one count of illegal re-entry
by a deported alien previously convicted of an aggravated felony, in violation of 8
U.S.C. § 1326(a) & (b)(2). The district court sentenced him to thirty-three
months’ imprisonment. On appeal, Defendant’s counsel has filed an Anders brief,
arguing that there are no legally viable issues for appeal. See Anders v.
California, 386 U.S. 738 (1967). The government has declined to file a response.
*
This order and judgment is not binding precedent, except under the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.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we dismiss the appeal and
grant counsel’s motion to withdraw.
I.
After Defendant pled guilty, the presentence report (“PSR”) determined
that Defendant’s base offense level was eight. U.S.S.G. § 2L1.2(a). Defendant
received a sixteen-level enhancement because of a previous conviction for a drug
trafficking offense. See id. § 2L1.2(b)(1)(A)(i). He also received a three-level
reduction for acceptance of responsibility, see id. § 3E1.1, which resulted in a
total offense level of twenty-one. In addition, because Defendant’s prior
conviction had resulted in a sentence of three years’ imprisonment, the PSR
assessed him three criminal history points. See id. § 4A1.1(a). This produced a
criminal history category of II, which, when combined with Defendant’s total
offense level of twenty-one, resulted in a Guidelines range of forty-one to fifty-
one months’ imprisonment. See id. ch. 5, pt. A.
Defendant’s court-appointed counsel, Noel Orquiz, filed a Sentencing
Memorandum with the district court, agreeing with the PSR’s calculations under
the Guidelines but nonetheless requesting a variance under the factors listed in 18
U.S.C. § 3553(a). Mr. Orquiz explained that Defendant’s prior conviction had
occurred almost thirteen years earlier, when Defendant was only nineteen years
old. Mr. Orquiz argued, therefore, that the Guidelines range was “unreasonably
harsh and greater than necessary to achieve the statutory purposes of Section
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3553.” Sentencing Memorandum, Doc. 14, at 2.
At the sentencing hearing, the district court agreed with Mr. Orquiz and
granted Defendant a downward variance from the Guidelines range. The court
sentenced Defendant to thirty-three months’ imprisonment, explaining:
I have reviewed the Presentence Report factual findings. I have
considered the sentencing guideline applications and the factors
under [18 U.S.C. § 3553(a)]. The guideline imprisonment range is
41 to 51 months. Sentence will be imposed, however, independent of
the Guidelines under [18 U.S.C. § 3553(a)]. I have determined that a
sentence of 33 months, to which the Government does not object, is a
sentence that’s sufficient but not longer than necessary to . . . meet
the goals of Section 3553(a)(1) and (2).
Sentencing Tr. at 6.
Mr. Orquiz has now filed an Anders brief, arguing that there are no legally
viable issues for appeal. The government has not filed a response.
II.
Under Anders, a court-appointed defense counsel who has “conscientiously
examine[d] a case,” and concluded “that any appeal would be wholly frivolous,”
may
submit a brief to the client and the appellate court indicating any
potential appealable issues based on the record. The client may then
choose to submit arguments to the court. The Court must then
conduct a full examination of the record to determine whether
defendant’s claims are wholly frivolous. If the court concludes after
such an examination that the appeal is frivolous, it may grant
counsel’s motion to withdraw and may dismiss the appeal.
United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing Anders, 386
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U.S. at 744).
We agree with counsel that no potentially meritorious issues exist on
appeal. There is no reason to believe that Defendant’s plea was anything other
than knowing and voluntary. See Brady v. United States, 397 U.S. 742, 755-56,
(1970). Defendant had the opportunity to object to any facts contained in the
PSR, but did not do so, and, under Rule 32(i)(3)(A) of the Federal Rules of
Criminal Procedure, the district court was permitted to “accept any undisputed
portion of the presentence report as a finding of fact.” Fed. R. Crim. P.
32(i)(3)(A).
The record further indicates that Defendant’s sentence was reasonable. As
the Supreme Court recently explained in Kimbrough v. United States, --- U.S. ---,
128 S. Ct. 558, 564 (2007), “‘reasonableness’ is the standard controlling appellate
review of the sentences district courts impose.” First, we review for procedural
reasonableness, asking whether the district court committed a procedural error,
“such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any deviation from the
Guidelines range.” Gall v. United States, --- U.S. ---, 128 S. Ct. 586, 597 (2007).
We then review for substantive reasonableness “under an abuse-of-discretion
standard,” and, “[w]hen conducting this review, [we] will, of course, take into
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account the totality of the circumstances, including the extent of any variance
from the Guidelines range.” Id.; see also United States v. Smart, --- F.3d ---,
2008 WL 570804, at *4-*9 (10th Cir. 2008).
There is no indication that the district court committed a procedural error
here. Moreover, the district court did not abuse its discretion in sentencing
Defendant to thirty-three months’ imprisonment—eight months below the bottom
of the Guidelines range. Defendant’s prior conviction was relatively stale, and
the district court’s analysis of Defendant’s sentence, under the factors listed in 18
U.S.C. § 3553(a), is persuasive. Defendant’s sentence was both procedurally and
substantively reasonable.
We DISMISS Defendant’s appeal and GRANT counsel’s motion to
withdraw.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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