FILED
United States Court of Appeals
Tenth Circuit
January 21, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 09-1057
v. (D.C. No. 08-CR-00319-WYD-1)
(D. Colo.)
ENRIQUE TAFOLLA-ZAVALA,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and HOLMES, Circuit Judges. **
Defendant-Appellant Enrique Tafolla-Zavala pled guilty to illegal reentry
subsequent to deportation following a conviction for transporting illegal aliens. 8
U.S.C. § 1326(a), (b)(2). Based on a total offense level of 21 and a criminal
history category of IV, he was sentenced to 57 months’ imprisonment and three
years’ supervised release. 1 R. 44-45; 2 R. 23. Mr. Tafolla-Zavala’s counsel
*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
filed a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967), and
moved to withdraw. Mr. Tafolla-Zavala responded requesting other counsel. Our
jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We decline
to appoint other counsel, dismiss the appeal and grant counsel’s motion to
withdraw.
In Anders, the Supreme Court held that if appointed counsel “finds his 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 the court a brief addressing “anything in the record that might
arguably support the appeal.” Id. When counsel submits an Anders brief
accompanied by a motion to withdraw, we “conduct a full examination of the
record to determine whether defendant’s claims are wholly frivolous.” United
States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). If we concur in counsel’s
evaluation of the case, we may grant the request to withdraw and dismiss the
appeal. Anders, 386 U.S. at 744.
Counsel provided a copy of the Anders brief to Mr. Tafolla-Zavala, as well
as the motion to withdraw. Aplt. Br. at 1, 18; Motion at 5. This court also
provided notice to him in accordance with 10th Cir. R. 46.4(B)(2). As noted, Mr.
Tafolla-Zavala wrote the court requesting other counsel.
After reviewing the record, we agree with counsel’s assessment that no
meritorious issues exist on appeal. The only arguable basis for an appeal is that
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the plea agreement and the plea colloquy indicated an eight-level upward
adjustment based on a conviction for an aggravated felony, U.S.S.G. §
2L1.2(b)(1)(C) (2004), when in fact the proper adjustment was sixteen levels for
an alien smuggling offense, U.S.S.G. § 2L1.2(b)(1)(A)(vii). Although the plea
agreement anticipated an advisory guideline range of 12-41 months, 1 R. 12, the
PSR indicated an advisory guideline range of 57-71 months with a recommended
57-month sentence. 3 R. 17, R-1. Counsel did not object to the PSR and agreed
with the recommendation. 2 R. 21.
Despite this change, the record reflects that Mr. Tafolla-Zavala’s plea was
entered knowingly and voluntarily. He was advised of the statutory 20-year
maximum. 1 R. 9, 15 (plea agreement); 2 R. 10 (plea colloquy). He was also
advised that any sentencing computation was advisory, and that the court was free
to reach its own conclusion. 1 R. 11-12, 18 (plea agreement); 2 R. 10 (plea
colloquy). This simply was not a plea agreement with a specific sentence that
would bind the court. See Fed. R. Civ. P. 11(c)(1)(C). The court did indicate that
the advisory guideline sentence, depending upon criminal history, could range
from 12 to 41 months, but again stated that no sentencing decision could be made
until the PSR had been prepared and reviewed by the court. 2 R. 10, 14 (plea
colloquy); 1 R. 26 at ¶ 15; 35 at ¶ 15 (plea agreement). Mr. Tafolla-Zavala
expressed his desire to plead guilty–“at this point all I would like is just to be
able to do whatever time I need to do and get it done as soon as possible and just
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get back to Mexico–” and nothing suggests that had he known the correct
guideline range, he would have insisted upon going to trial. 2 R. 17-18.
Any error as to the procedural or substantive reasonableness of the sentence
was waived when counsel indicated agreement with the sentence to be imposed, 2
R. 21. See United States v. Mancera-Perez, 505 F.3d 1054, 1059 (10th Cir.
2007). Appointment of other counsel is not warranted given the careful
presentation by appellate counsel and the lack of meritorious issues.
We therefore DISMISS Mr. Tafolla-Zavala’s appeal. We GRANT counsel’s
motion for leave to withdraw and DENY Mr. Tafolla-Zavala’s request for other
counsel.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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