FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS September 10, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 08-2024
v. (D. New Mexico)
LUIS HUMBERTO DE LEON- (D.C. No. 2:07-CR-01811-JB)
DELGADO,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, ANDERSON, and BRORBY, 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.
Defendant and appellant Luis Humberto De Leon-Delgado pled guilty to
one count of illegal reentry by a previously deported alien, in violation of
*
This order and judgment is not binding precedent except under the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.
8 U.S.C. § 1326(a)(1), (2) and (b)(2). During the plea colloquy, the court
specifically told De Leon-Delgado that he could receive a sentence of up to
twenty years. De Leon-Delgado indicated that he understood the charges against
him, that he had discussed his case with his attorney, that he was satisfied with
his attorney’s representation, and that his plea of guilty was voluntary.
In preparation for sentencing, the United States Probation Office prepared a
presentence report (PSR). The PSR revealed that De Leon-Delgado had
previously been deported following a conviction for conspiring to transport illegal
aliens. With a total adjusted offense level of 21 and a criminal history category
of III, the advisory sentencing range under the United States Sentencing
Commission, Guidelines Manual (USSG), was forty-six to fifty-seven months.
De Leon-Delgado filed a sentencing memorandum, in which he requested a
sentence of twelve months, either as a variance pursuant to the 18 U.S.C.
§ 3553(a) factors or because a criminal history category III overrepresented his
criminal history. After concluding that a criminal history category III did,
indeed, substantially overstate De Leon-Delgado’s criminal history, and because
the court believed that a variance pursuant to the § 3553(a) factors was
appropriate, the court sentenced De Leon-Delgado to a below-Guidelines sentence
of thirty-four months. He seeks to appeal that sentence.
De Leon-Delgado’s appointed counsel, James Baiamonte, has filed an
Anders brief and has moved to withdraw as counsel. See Anders v. California,
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386 U.S. 738 (1967). De Leon-Delgado has not filed a response, and the
government has declined to file a brief. We therefore base our conclusion on
counsel’s brief and our own careful review of the record. For the reasons set
forth below, we agree with Mr. Baiamonte that the record in this case provides no
nonfrivolous basis for an appeal, and we therefore grant his motion to withdraw
and dismiss this appeal.
“We review sentences for reasonableness under a deferential abuse of
discretion standard.” United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.
2008) (citing Gall v. United States, 128 S. Ct. 586, 591 (2007)). “Reasonableness
review is comprised of a procedural component and a substantive component.”
Id. Procedural unreasonableness occurs “if the district court incorrectly
calculates or fails to calculate the Guidelines sentence, treats the Guidelines as
mandatory, fails to consider the § 3553(a) factors, relies on clearly erroneous
facts, or inadequately explains the sentence.” Id. A sentence is substantively
unreasonable if its length “is unreasonable given the totality of the circumstances
in light of the 18 U.S.C. § 3553(a) factors.” Id.
Furthermore, if a district court decides to grant a variance from the
advisory Guidelines sentencing range, as the court did in this case, “we generally
defer to its decision to grant . . . a variance based upon its balancing of the
§ 3553(a) factors.” Id. We will only conclude that the district court abused its
discretion “when it renders a judgment that is arbitrary, capricious, whimsical, or
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manifestly unreasonable.” United States v. Munoz-Nava, 524 F.3d 1137, 1146
(10th Cir. 2008) (internal quotations omitted).
Under Anders, “counsel [may] request permission to withdraw [from an
appeal] 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) (citing Anders, 386 U.S. at 744). This process requires counsel
to:
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.
Id. (citing Anders, 386 U.S. at 744). As indicated, De Leon-Delgado’s counsel
has filed his Anders brief in this appeal, to which neither De Leon-Delgado nor
the government has responded.
We agree with counsel that there is no nonfrivolous issue related to De
Leon-Delgado’s sentence which could form the basis for an appeal. We have
carefully reviewed the record, and can discern no procedural or substantive
unreasonableness with the sentence or the way it was calculated and imposed.
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For the foregoing reasons, we GRANT counsel’s motion to withdraw and
DISMISS this appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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