FILED
United States Court of Appeals
Tenth Circuit
June 18, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-2196
v. (District of New Mexico)
(D.C. No. CR-07-1071 MCA )
FRANCISCO GRANADOS-FLORES,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before TACHA, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
ANDERSON, Senior Circuit Judge.
On May 29, 2007, Francisco Granados-Flores (the defendant) was charged in a
Criminal Information filed in the United States District Court for the District of New
Mexico with having been found in Luna County, New Mexico, after having been
deported from the United States and while the order of the exclusion was in full force and
effect, in violation of 8 U.S.C. §§ 1326(a) and 1326(b). Pursuant to the Criminal Justice
*
This order and judgment is not binding precedent, except under the doctrines of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.
The parties waived oral argument. After examining the briefs and appellate
record, this panel has determined unanimously that oral argument would not materially
assist 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.
Act, counsel was appointed to represent the defendant in the district court, and the same
counsel represents the defendant on appeal in this Court. In the district court, the
defendant, through counsel, filed a waiver of indictment and consented to appear before a
United States Magistrate Judge. The defendant thereafter pled guilty pursuant to an
Information wherein he waived many of his constitutional rights but preserved his right to
appeal his sentence.
Pursuant to U.S.S.G. 2L1.2(a), the Pre-Sentence Report (PSR) set defendant’s base
offense level at 8 levels. The PSR then increased defendant’s base offense level of 8 by
16 levels, i.e. to 24 levels, based on his prior conviction of a crime of violence, i.e.,
Indecency with a Child, in the District Court for Tarrant County, Texas. That level of 24
was then reduced by 3 levels for acceptance of responsibility, i.e. to 21 levels.
Defendant’s criminal history category was set at II. With an adjusted offense level of 21
and a criminal history category of II, the guideline range was imprisonment for 41 to 51
months.
The PSR, which was adopted without change by the sentencing judge, did not
recommend any departure, be it upward or downward, from the guideline range. In that
setting, the district court sentenced defendant to imprisonment for 41 months, the low end
of the guideline range.
At the direction of the defendant, appointed counsel filed a timely notice of appeal,
the defendant indicating to counsel that he “wished to challenge the length of his
sentence.”
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In this Court, defendant’s counsel has filed a so-called Anders brief, Anders v.
California, 386 U.S. 738 (1967). In that brief, counsel states that the “sentence was
imposed in accordance with the law.”
A copy of the Anders brief was sent to the United States and a copy was also sent
to the defendant. The defendant did not file any “response” to his counsel’s Anders brief,
and the United States indicated that, under the circumstances, it would not file any brief
in response to counsel’s Anders brief.
At sentencing, counsel for the defendant asked the district court to impose a
sentence of 24 months, instead of a sentence within the guideline range of imprisonment
which was 41 to 51 months. In so doing, counsel spoke as follows:
Thank you, Your Honor. Your Honor, as I detailed in
my sentencing memorandum, I’m asking the Court for some
extraordinary relief. The guideline low-end range places my
client at 41 months and the upper-end advisory guideline
range will be 51 months. I’m asking the Court to adjudge a
sentence of 24 months, and the basis for that is the sentence
that was handed down by the State Court of Texas to the
underlying charge.
Remarkably, my client was placed on probation for the
sentence that he received from the Texas authorities, and I
think that’s very telling or very instructive that the Texas
authorities certainly didn’t consider Mr. Granados too severe
or a serious threat to the community, and that’s why they gave
him a prorated sentence. I’m asking the Court for a
considerable sentence of 24 months. My client has been
incarcerated for approximately eight months, and I think 24
months is a very severe sentence given his lack of criminal
activity, obviously, besides the one conviction which yielded
him a 16 level enhancement.
The defendant then spoke to the Court as follows:
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Yes. Well, I do know that I made a mistake by
returning to this country, and therefore, I apologize to this
great nation. And I would like for you to have some
consideration concerning my case. And I do not plan to come
back to this nation, if you consider my case. And if I do come
back here, I am willing to even sign a document if you grant
me at least ten years without rights to have anything. (Sic)
The government opposed the request of defendant and his counsel to impose a
sentence of 24 months.
In rejecting the request of defendant and his counsel to a sentence of 24 months,
the district court spoke, inter alia, as follows:
As noted, I have adopted the findings of the Court, the
factual recitation set forth in the pre-sentence report. I have
considered the guidelines noting the advisory nature of the
guidelines and have also considered the sentencing factors
under 3553(a). Here the offense level is 21 and the criminal
history category is two which establishes a guideline
imprisonment range of 41 to 51 months. I note that this
defendant reentered the United States after previously being
deported following a conviction for a crime of violence.
As to information CR-07-1071, this defendant,
Francisco Granados-Flores, is committed to the custody of the
Bureau of Prisons for a term of 41 months. He is placed on
supervised release for a term of two years. That term will be
unsupervised. The mandatory conditions of supervised release
and following special condition will apply, that he not reenter
the United States without legal authorization. I will recommend that the Immigration and
Customs Enforcement Agency begin removal proceedings during service of sentence.
Based . . . [Vol. IV of the Record, page 7, line 1 missing] . . .
impose a fine. I will require that he pay a special assessment
in the amount of $100, that amount due immediately.
Finally, I do advise him within ten days of the entry of
judgment in this case, he has the right to appeal the final
sentence of this Court, and he has a right to apply for leave to
appeal in forma pauperis if he’s unable otherwise to pay the
cost of an appeal.
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There is nothing in the present record to suggest that the defendant’s plea of guilty
was in any respect unknowingly or involuntarily made. So, we assume the contrary, i.e.,
the plea was knowingly and voluntarily made. It is in that setting that counsel in his
Anders brief states that the sentence of 41 months imprisonment was “in accordance with
the law” and hence would not be a viable issue on appeal. We agree.
In United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006), we stated that “if,
however, the district court properly considers the relevant Guidelines range and sentences
the defendant within that range, the sentence is presumptively reasonable. The defendant
may rebut this presumption by demonstrating that the sentence is unreasonable in light of
the other sentencing factors laid out in 3553(a).” In the instant case, that presumption has
not been rebutted. The fact that, in sentencing, the Texas court may have dealt lightly with
the defendant does not belie the fact that defendant was convicted in the Texas court for
Indecency with a Child, a crime of violence under Texas law. Such, in and of itself, does
not rebut the presumption of reasonableness to a sentence within the guidelines.
Counsel’s motion to withdraw is granted.
Judgment affirmed.
Entered for the Court
Robert H. McWilliams
Senior Circuit Judge
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