FILED
United States Court of Appeals
Tenth Circuit
April 17, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 07-2226
v. (D. New Mexico)
PEDRO ARMENDARIZ-CASTILLO, (D.C. No. 07-CR-00490-BB)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, PORFILIO, and ANDERSON, 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 and appellant Pedro Armendariz-Castillo pled guilty to illegal
reentry by a previously deported alien, in violation of 8 U.S.C. § 1326(a)(1), (2)
and (b)(2). During the plea colloquy, the court specifically told Armendariz-
*
This order and judgment is not binding precedent except under the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.
Castillo that he could receive a sentence up to twenty years. Armendariz-Castillo
indicated that he had discussed his case with his attorney, that he understood the
charges against him and the potential penalties, and that his plea of guilty was
voluntary.
In preparation for sentencing, the United States Probation Office prepared a
presentence report (“PSR”). The PSR revealed that Armendariz-Castillo had
previously been deported following a conviction for transporting illegal aliens.
With a total adjusted offense level of 21 and a criminal history category III, the
advisory sentencing range under the United States Sentencing Commission,
Guidelines Manual (“USSG”), was forty-six to fifty-seven months.
The probation office determined, however, that Armendariz-Castillo’s
criminal history category was overstated, and that his criminal history “is most
similar to a defendant in criminal history category II.” PSR ¶ 44, R. Vol. 2. That
criminal history category yielded an advisory Guidelines range of forty-one to
fifty-one months. The district court sentenced Armendariz-Castillo to forty-one
months’ imprisonment. He seeks to appeal that sentence.
Armendariz-Castillo’s appointed counsel, James Baiamonte, has filed an
Anders brief and has moved to withdraw as counsel. See Anders v. California,
386 U.S. 738 (1967). Armendariz-Castillo has not filed a response, and the
government has declined to file a brief. We therefore base our conclusion on
counsel’s brief and our own careful review of the record. For the reasons set
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forth below, we agree with Mr. Baiamonte that the record in this case provides no
nonfrivolous basis for an appeal, and we therefore grant his motion to withdraw
and dismiss this appeal.
“When reviewing a sentencing challenge, we evaluate sentences imposed
by the district court for reasonableness.” United States v. Thompson, 518 F.3d
832, 866 (10th Cir. 2008) (further quotation omitted). This reasonableness
inquiry “includes both procedural and substantive components, and we ‘review
the sentence under an abuse-of-discretion standard.’” Id. (quoting Gall v. United
States, 128 S. Ct. 586, 594 (2007)). “Procedural reasonableness involves using
the proper method to calculate the sentence. Substantive reasonableness involves
whether the length of the sentence is reasonable given all the circumstances of the
case in light of the factors set forth in 18 U.S.C. § 3553(a).” Id. at 866-67
(further quotation omitted).
Under Anders, “counsel [may] request permission to withdraw [from an
appeal] 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) (citing Anders, 386 U.S. at 744). This process requires counsel
to:
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 [c]ourt must then
conduct a full examination of the record to determine whether
defendant’s claims are wholly frivolous. If the court concludes after
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such an examination that the appeal is frivolous, it may grant
counsel’s motion to withdraw and may dismiss the appeal.
Id. (citing Anders, 386 U.S. at 744). As indicated, Armendariz-Castillo’s counsel
has filed his Anders brief in this appeal, to which neither Armendariz-Castillo nor
the government has responded.
We agree with counsel that there is no nonfrivolous issue related to
Armendariz-Castillo’s sentence which could form the basis for an appeal. We
have carefully reviewed the record, and can discern no procedural or substantive
unreasonableness with the sentence or the way it was calculated and imposed.
For the foregoing reasons, we GRANT counsel’s motion to withdraw and
DISMISS this appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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