FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 4, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 10-2116
v. (D. New Mexico)
ARNULFO REYES-TORRES, (D.C. No. 2:09-CR-03452-WJ-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
This appeal concerns the second conviction of Arnulfo Reyes-Torres in the
United States District Court for the District of New Mexico. His first conviction
was for transporting illegal aliens. On September 9, 2002, he was sentenced in
that case to eight months’ imprisonment. He was removed from the United States
in July 2003. On May 10, 2009, he was arrested in Las Cruces, New Mexico, for
shooting from a motor vehicle, a fourth-degree felony. He was convicted of the
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
offense in state court and sentenced to three years’ incarceration, with all but 115
days suspended. He was then indicted in federal court on one count of unlawful
entry by a deported alien. See 8 U.S.C. § 1326(a) and (b). He pleaded guilty and
the district court sentenced him to 41 months’ imprisonment, followed by three
years of supervised release.
On appeal from that conviction Mr. Reyes-Torres’s counsel has filed an
Anders brief and moved to withdraw as counsel. See Anders v. California, 386
U.S. 738 (1967). The clerk of this court sent Mr. Reyes-Torres notice of his right
to respond to the Anders brief, see id. at 744 (defendant must be given a copy of
the Anders brief and provided time to respond), and he responded in a pleading
titled “Motion Under 28 U.S.C. § to Vacate Set Aside.” Agreeing that there are
no meritorious issues on appeal, we grant the motion to withdraw and dismiss the
appeal.
I. DISCUSSION
Under Anders if an attorney examines a case and determines that an appeal
desired by his client would be “wholly frivolous,” counsel may “so advise the
court and request permission to withdraw.” Id. Counsel must submit a brief to
both the appellate court and the client, pointing to anything in the record that
could potentially present an appealable issue. See id. The client may then choose
to offer argument to the court. See id. If, upon close examination of the record,
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the court determines that the appeal is frivolous, it may grant counsel’s request to
withdraw and dismiss the appeal. See id.
After conducting an independent examination of the record, we agree with
counsel’s conclusion that no conceivably meritorious basis for appeal exists. In
particular, we have considered the voluntariness of Mr. Reyes-Torres’s plea, the
calculation of his advisory guidelines sentencing range, and the reasonableness of
his sentence.
A valid guilty plea must be knowing, intelligent, and voluntary. See United
States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998); see also Fed. R. Crim.
P. 11. The plea agreement signed by Mr. Reyes-Torres states that his plea was
“freely and voluntarily made,” R., Vol. 1 at 16, and the magistrate judge fulfilled
the requirements of Rule 11 in accepting the plea. The judge verified a factual
basis for the plea; questioned Mr. Reyes-Torres to confirm that he understood the
charges against him; informed him of the maximum possible penalty provided by
law and of the consequences of the plea; and otherwise ensured that the plea was
freely, voluntarily, and intelligently made.
Mr. Reyes-Torres’s guideline range was calculated correctly. Under the
advisory United States Sentencing Guidelines, Mr. Reyes-Torres’s conviction
carried a base offense level of 8, see USSG § 2L1.2(a), and his prior deportation
following a felony conviction for transporting illegal aliens—an offense
punishable by 10 years’ imprisonment—required a 16-level enhancement. See id.
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at § 2L1.2(b)(1)(A)(vii). Under USSG § 5K3.1 the government agreed to a four-
level reduction because Mr. Reyes-Torres demonstrated an acceptance of
responsibility for the offense of conviction and waived his appellate rights.
Mr. Reyes-Torres’s offense level was therefore properly calculated at 20. His
sentences of imprisonment for his prior state and federal convictions gave him a
criminal-history score of 4, see USSG § 4A1.1(b), which corresponded to a
criminal-history category of III, and resulted in a sentencing guideline range of 41
to 51 months. See id. at ch. 5, pt. A.
In addition, there is no nonfrivolous ground for challenging the
reasonableness of Mr. Reyes-Torres’s sentence. The district court sentenced him
at the low end of the applicable guidelines range. A properly calculated sentence
within the guidelines range is accorded a presumption of reasonableness. See
United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). Moreover, the
court explained its sentence in terms of the factors under 18 U.S.C. § 3553(a).
Mr. Reyes-Torres argues in this court that his criminal-history category is over-
represented and that a downward departure or variance is appropriate. He refers
to his counsel’s sentencing memorandum submitted to the district court, which
argued that his prior federal conviction resulted from his merely taking his turn
driving and his state conviction resulted from mere reckless behavior caused by
intoxication. We are not persuaded that he has rebutted the presumption of
reasonableness.
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II. CONCLUSION
We conclude, as did defense counsel, that there are no meritorious issues
for appeal. We GRANT counsel’s motion to withdraw and DISMISS the appeal.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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