FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 14, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 08-2039
v. (D. New Mexico)
PATRICIA MARTINEZ-DE (D.C. No. 2:07-CR-01267-MV-1)
NEVAREZ,
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 ordered submitted without oral argument.
Patricia Martinez-De Nevarez pleaded guilty to one count of illegally
reentering the United States in violation of 8 U.S.C. § 1326(a). The United States
*
This order and judgment is not binding precedent except under the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.
Probation Office prepared a pre-sentence report (“PSR”). The PSR applied a
sixteen-level enhancement to the defendant’s base offense level, pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(ii), for committing a prior crime of violence; in this
case, burglarizing a residence in Texas. The defendant’s resulting offense level
was twenty-one. Her criminal history category was I, establishing an advisory
guidelines’ range of thirty-seven to forty-six months’ imprisonment. The
probation officer, however, recommended a below-guidelines sentence, because
the defendant’s prior burglary conviction occurred in 1984, twenty-four years
prior to this offense, and her involvement in the burglary was minor compared to
her co-defendants.
Martinez-De Nevarez filed several objections to the PSR. Although the
district court overruled the defendant’s objections, it granted a downward
variance. The defendant was sentenced to twelve months’ and one day
imprisonment.
Martinez-De Nevarez filed a timely Notice of Appeal and her counsel,
James Baiamonte, filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), moving to withdraw as counsel. Under Anders, counsel may “request
permission to withdraw 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). Counsel is required to submit a
brief to both the defendant and this court indicating any potential appealable
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issues. Id. The defendant may then submit additional arguments. “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 such an
examination that the appeal is frivolous, it may grant counsel’s motion to
withdraw and may dismiss the appeal.” Id. (citation omitted). Martinez-De
Nevarez’s counsel filed his Anders brief on April 21, 2008. The defendant has
not submitted any additional arguments. Our conclusions, therefore, are based on
counsel’s Anders brief and our own review of the record.
After United States v. Booker, 543 U.S. 220 (2005), this court reviews
sentences for an abuse of discretion, asking whether the sentence is reasonable.
United States v. Gall, 128 S. Ct. 586, 594 (2007). We first determine whether the
sentence is procedurally reasonable. United States v. Muñoz-Nava, 524 F.3d
1137, 1146 (10th Cir. 2008). We next “consider the sentence’s substantive
reasonableness utilizing the abuse-of-discretion standard.” Id. In this case, the
district court properly calculated the defendant’s advisory guideline range and
committed no procedural error. Further, the sentence was substantively
reasonable. The district court concluded the defendant’s advisory guidelines
range over-represented the seriousness of the offense and therefore granted the
defendant a twenty-five month downward variance. Martinez-De Nevarez thus
seeks to argue a twenty-five month downward variance was unreasonable and the
court should have imposed an even greater downward variance. This argument is
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without merit. Giving due deference to the district court’s decision that the 18
U.S.C. § 3553(a) factors justify the extent of the variance, we find the district
court’s sentence was reasonable. Muñoz-Nava, 524 F.3d at 1149.
Our review of the record reveals no other claims arguable on their merits,
and we accordingly conclude that Martinez-De Nevarez’s appeal is wholly
frivolous. Counsel’s motion to withdraw is granted and this appeal is dismissed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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