FILED
United States Court of Appeals
Tenth Circuit
May 6, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-2199
HUGO GARCIA-GUTIERREZ, (D.C. No. CR-07-1031-JP)
(D. New Mexico)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, MURPHY, and HARTZ, 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, submitted without oral argument.
Defendant Hugo Garcia-Gutierrez pled guilty to one count of illegal re-
entry by a deported alien previously convicted of a felony, in violation of 8
U.S.C. § 1326(a) & (b)(1). The district court sentenced him to eight months’
*
This order and judgment is not binding precedent, except under the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.
imprisonment, followed by three years of supervised release. 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). Neither
the government nor Defendant has filed a response. 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”) indicated that
Defendant’s base offense level was eight. U.S.S.G. § 2L1.2(a). Defendant
received a four-level enhancement because of a previous felony conviction for
criminal trespass. See id. § 2L1.2(b)(1)(D). He also received a two-level
reduction for acceptance of responsibility, see id. § 3E1.1(a), which resulted in a
total offense level of ten. In addition, because Defendant’s prior conviction had
resulted in a sentence of twenty-three months’ 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 ten, resulted in a Guidelines range of eight to fourteen months’ imprisonment.
See id. ch. 5, pt. A.
Defendant did not object to the calculations in the PSR. Rather, Defendant
requested a sentence of eight months’ imprisonment—the bottom of the
Guidelines range. At the sentencing hearing, the district court granted
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Defendant’s request and imposed a sentence of eight months’ imprisonment.
Defendant’s counsel has now filed an Anders brief, arguing that there are
no legally viable issues for appeal. Neither the government nor Defendant has
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
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).
The record also indicates that Defendant’s sentence was both procedurally
and substantively reasonable. As the Supreme Court recently explained in
Kimbrough v. United States, --- U.S. ---, 128 S. Ct. 558, 564 (2007),
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“‘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 [18 U.S.C.] § 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 account the
totality of the circumstances, including the extent of any variance from the
Guidelines range.” Id.; see also United States v. Smart, 518 F.3d 800, 804-10
(10th Cir. 2008).
Here, the district court correctly calculated the Guidelines range, and the
district court considered the sentencing factors in 18 U.S.C. § 3553(a). Further,
the district court did not abuse its discretion in sentencing Defendant to eight
months’ imprisonment, at the bottom of the Guidelines range. Defendant’s
sentence was procedurally and substantively reasonable.
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The appeal is DISMISSED, and counsel’s motion to withdraw is
GRANTED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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