FILED
United States Court of Appeals
Tenth Circuit
June 27, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-1365
v. District of Colorado
JOVITA PEDRAZA-AYALA, (D.C. No. 06-CR-00442-MSK)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, KELLY and McCONNELL, Circuit Judges.
Jovita Pedraza-Ayala pled guilty in federal court to illegal reentry of a
previously deported alien and received a 30-month sentence. She has appealed to
this Court. Her counsel, Robert Pepin, moved to withdraw as counsel and filed an
Anders brief, explaining that after a diligent search he could find no non-frivolous
grounds of appeal. Neither Ms. Pedraza-Ayala nor the government has submitted
*
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). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
a brief. Because we, too, find no non-frivolous issues on appeal, we grant
counsel’s motion to withdraw and dismiss the appeal.
BACKGROUND
Ms. Pedraza-Ayala is a 56-year-old citizen of Mexico who first entered the
United States illegally at 18, and has lived here most of the time since. After
being deported in 1995 for an aggravated felony conviction, she reentered the
country and in October, 2006, was charged with a single count of illegal reentry.
8 U.S.C. § 1326.
She received the assistance of a federal public defender, and in March,
2007, filed a pro se motion requesting that the district court dismiss her lawyer
and appoint a replacement because she was “in need of an attorney that is
informed about [i]mm[i]gration laws,” and believed there was “a conflict of
[i]nt[e]rest between Mr. Pepin and [her]self.” R. Vol. I, Doc. 15. The district
court held a hearing where Ms. Pedraza-Ayala explained her objections, and it
became clear that there was no conflict of interest in the legal sense—the
defendant simply wanted an immigration specialist. The district judge rejected
the motion, explaining: “Mr. Pepin is a very skilled and knowledgeable attorney.
His speciality is criminal law. I can only let him withdraw if I find good cause.
And your desire to get legal advice with regard to immigration is not good cause
for him to withdraw.” R. Vol. II, at 7–8.
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In April, 2007, Ms. Pedraza-Ayala then informed the district court that she
wished to plead guilty. She signed a plea agreement with the government under
which she pled guilty to illegal reentry, and the government agreed to recommend
a three-point sentencing reduction for acceptance of responsibility and a sentence
at the bottom of the advisory guidelines range. Ms. Pedraza-Ayala then appeared
before the court and pled guilty, testifying (through an interpreter) that she
understood her plea and its consequences, and that the facts alleged by the
government were true. She corrected one minor error: that her previous felony
conviction was in Santa Cruz, not in Santa Barbara.
Ms. Pedraza-Ayala appeared for sentencing in July 2007, but was too ill to
proceed. This may have been due to trouble she had receiving medical treatment
for a time while she was in custody, an issue the judge and defense counsel dealt
with at some length below. She went to the hospital and appeared again for
sentencing a week later, explaining that she felt “fine.” R. Vol. V, at 3. The
Presentence Report calculated a total offense level of 13 (a base offense level of
8, an 8-point enhancement because she was deported after an aggravated felony,
and a 3-point reduction for acceptance of responsibility) and a criminal history
category of V (five) (for a series of fraud, theft, and traffic crimes). This
produced a Guidelines range of 30–37 months. Neither party made any material
objections and Ms. Pedraza-Ayala received a 30-month sentence. Ms. Pedraza-
Ayala then appealed and her counsel filed an Anders brief.
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ANALYSIS
“The Supreme Court’s decision in Anders v. California, 386 U.S. 738
(1967), authorizes counsel to request permission to withdraw where counsel
conscientiously examines a case and determines that any appeal would be wholly
frivolous. Under Anders, counsel must 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) (internal citations omitted).
Ms. Pedraza-Ayala has not filed a brief, so no party argues on appeal that
there are any errors justifying reversal. After our own review, we agree. As to
the issues mentioned in the Anders brief, we agree with Ms. Pedraza-Ayala’s
counsel. The district court did not abuse its discretion in refusing to appoint a
new attorney. See United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006);
United States v. Nichols, 841 F.2d 1485, 1504 (10th Cir. 1988). Nor is there any
evidence that Ms. Pedraza-Ayala’s plea was unknowing or involuntary or lacked a
factual basis. See United States v. Graham, 466 F.3d 1234, 1239 (10th Cir.
2006); United States v. Blair, 54 F.3d 639, 643–44 (10th Cir. 1995). Finally, her
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within-guidelines sentence is substantively and procedurally reasonable. United
States v. Angel-Guzman, 506 F.3d 1007, 1010–17 (10th Cir. 2007). We have
uncovered no other issues worth discussing, and certainly no non-frivolous
grounds for appeal.
Defense counsel’s motion to withdraw is GRANTED and the appeal is
DISMISSED.
Entered for the Court
Michael W. McConnell
Circuit Judge
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