FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 29, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 07-1492
v. D. Colo.
RAUL ROJAS-CRUZ, a/k/a Carlos (D.C. No. 07-CR-00228-WYD)
Cruz-Vizcarra, a/k/a Jose Ramon
Vizcarra, a/k/a Carlos Discardo Cruz,
a/k/a Carlos Cruz, a/k/a Ramiro Cruz-
Vizcarra,
Defendant-Appellant.
ORDER
GRANTING MOTION TO WITHDRAW
& DISMISSING APPEAL
Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.
Raul Rojas-Cruz pled guilty pursuant to a plea agreement to unlawful
reentry of a deported alien subsequent to an aggravated felony conviction in
violation of 8 U.S.C. § 1326(a) and (b)(2). The district court sentenced him to
thirty months imprisonment and three years supervised release. Rojas-Cruz’s
counsel filed an Anders brief and moved for leave to withdraw. See Anders v.
California, 386 U.S. 738 (1967). We received no response from Rojas-Cruz and
the government declined to submit a brief. Finding no meritorious issues, we
grant counsel’s motion to withdraw and dismiss the appeal.
Rojas-Cruz pled guilty pursuant to a plea agreement entered into with the
government. At the plea hearing, the district court conducted a Rule 11 colloquy
with Rojas-Cruz and determined he entered his plea of guilty freely and
voluntarily. See Fed. R. Crim. P. 11. It also determined there was an
independent factual basis for his plea. Id.
A presentence investigation report (“PSR”) was prepared using the 2006 edition
of the United States Sentencing Guidelines manual. The government filed a
motion requesting Rojas-Cruz receive a one-level decrease in his offense level for
acceptance of responsibility. See USSG §3E1.1(b). Based on Rojas-Cruz’s total
offense level and criminal history score, the PSR recommended a guideline range
of thirty to thirty-seven months imprisonment. Rojas-Cruz filed a motion seeking
a sentencing variance from the advisory guidelines. 1 Rojas-Cruz argued his
history and characteristics called for a below-guideline sentence and requested a
sentence of eighteen months.
At sentencing, Rojas-Cruz’s counsel argued in support of the motion for variance.
The government requested a sentence at the bottom of the guideline range. After
1
A departure occurs “when a court reaches a sentence above or below the
recommended Guidelines range through application of Chapters Four or Five of
the Sentencing Guidelines.” United States v. Atencio, 476 F.3d 1099, 1101 n.1
(10th Cir. 2007). A variance occurs “[w]hen a court enhances or detracts from
the recommended range through application of ' 3553(a) factors.” Id.
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reviewing the sentencing factors found in 18 U.S.C. § 3553(a) and Rojas-Cruz’s
record, the court concluded an eighteen month sentence was too lenient and
sentenced him to thirty months imprisonment. A separate judgment was entered
and Rojas-Cruz filed a notice of appeal.
Anders holds “if counsel finds his [client’s] case to be wholly frivolous,
after a conscientious examination of it, he should so advise the court and request
permission to withdraw.” 386 U.S. at 744. Counsel must submit to both the court
and his client a “brief referring to anything in the record that might arguably
support the appeal.” Id. The client may then “raise any points that he chooses.”
Id. Thereafter, the court must completely examine all the proceedings to
determine the frivolity of the appeal. “If it so finds it may grant counsel’s request
to withdraw and dismiss the appeal . . . . [I]f it finds any of the legal points
arguable on their merits (and therefore not frivolous) it must, prior to decision,
afford the indigent the assistance of counsel to argue the appeal.” Id.
Rojas-Cruz’s counsel indicates she could not find any non-frivolous
appellate issues. We have carefully reviewed the record and likewise find no
non-frivolous issues. The record demonstrates Rojas-Cruz’s guilty plea was
knowing and voluntary. See Brady v. United States, 397 U.S. 742, 755-56 (1970).
There was sufficient evidence to form a factual basis for the plea. See United
States v. Blair, 54 F.3d 639, 643 (10th Cir. 1995) (“Fed. R. Crim. P. 11(f)
requires a court to satisfy itself that there is a factual basis for a guilty plea before
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entering judgment on such a plea.”). The guideline range was properly calculated
and the district court properly applied the § 3553(a) factors. See United States v.
Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007) (holding sentence reflecting a
proper guideline calculation and application of § 3553(a) factors is procedurally
reasonable). The district court considered a non-guideline sentence, but
ultimately decided to sentence Rojas-Cruz at the bottom of the guideline range.
Its reasons for imposing the sentence were well explained and no evidence
counters the presumption of reasonableness we give his considered guideline
sentence. See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006)
(applying a presumption of reasonableness to sentences within the properly
calculated guidelines range).
Rojas-Cruz’s appeal is DISMISSED and counsel’s motion to withdraw is
GRANTED.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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