Appellate Case: 21-2117 Document: 010110698563 Date Filed: 06/17/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 17, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 21-2117
v. (D.C. No. 2:21-CR-00723-WJ-1)
(D.N.M.)
IGNACIO HUMBERTO FABIAN-
HURTADO,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges.
_________________________________
In January 2018, Ignacio Humberto Fabian-Hurtado (“Defendant”) was convicted
in the District of Arizona for illegally reentering the United States. The district court
imposed a sentence of 24 months’ imprisonment followed by a 3-year term of supervised
release. Relevant to this appeal are two of Defendant’s conditions of supervised release:
(1) that he not commit another federal, state, or local crime, and (2) that he not reenter
the United States without permission. In April 2021, the Government charged
*
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
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 This order and judgment is not binding precedent,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.
Appellate Case: 21-2117 Document: 010110698563 Date Filed: 06/17/2022 Page: 2
Defendant in the District of New Mexico with illegally reentering the United States, in
violation of 8 U.S.C. § 1326(a), (b)(1). Based on this charge, the U.S. Probation Office
filed a petition to revoke his supervised release. In the interest of judicial efficiency,
the District of Arizona transferred Defendant’s supervised release case to the District of
New Mexico. With both cases now before the District of New Mexico, Defendant
pleaded guilty to the underlying illegal reentry charge and admitted that his illegal
reentry violated the two relevant conditions of his supervised release. The district court
sentenced defendant to 42 months’ imprisonment for the underlying felony. See 18
U.S.C. § 1326 (a), (b)(1). The district court also revoked Defendant’s supervised release
and sentenced him to 12 months’ imprisonment to be served consecutively to his 42-
month sentence. Defendant timely appeals his sentence for violating the conditions of
his supervised release. Exercising jurisdiction under 8 U.S.C. § 3742 and 28
U.S.C. § 1291, we grant counsel’s motion to withdraw and dismiss this appeal.
Defendant’s counsel filed an Anders brief. We have explained the nature of an
Anders brief and the process of filing one as follows:
The Supreme Court’s decision in Anders authorizes counsel to request
permission to withdraw where counsel conscientiously examines a case
and determines that any appeal would be wholly frivolous. Under Anders,
counsel must 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.
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United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (internal citations
omitted) (citing Anders v. California, 386 U.S. 738, 744 (1967)).
Counsel’s Anders brief identifies two potentially appealable issues. First,
Defendant could argue that his revocation sentence is procedurally and substantively
unreasonable. Second, Defendant could claim that the district court abused its discretion
when imposing his revocation sentence consecutively to his 42-month illegal reentry
sentence. Defendant did not exercise his right to file a response to counsel’s Anders
brief. After fully examining the record, we agree with Defendant’s counsel that
Defendant cannot raise any non-frivolous issues on which to appeal.
“When a defendant violates a condition of supervised release, the district court
may, as it did here, revoke the term of supervised release and impose prison time.”
United States v. Steele, 603 F.3d 803, 808 (10th Cir. 2010) (citing 18 U.S.C.
§ 3583(e)(3)). The district court must consider the § 3553(a) factors as well as the policy
statements within Chapter 7 of the Guidelines Manual when imposing a revocation
sentence. See id. “The sentencing court, however, is not required to consider
individually each factor listed in § 3553(a), nor is it required to recite any magic words
to show us that it fulfilled its responsibility to be mindful of the factors that Congress
has instructed it to consider before issuing a sentence.” Id.
“We review the overall reasonableness of [any] sentence in two steps.” United
States v. Gieswein, 887 F.3d 1054, 1058 (10th Cir. 2018). “First, we ensure that the
district court committed no significant procedural error.” Id. (quotation omitted). “Our
review of procedural reasonableness focuses on the manner in which the sentence was
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calculated.” United States v. Sanchez-Leon, 764 F.3d 1248, 1261 (10th Cir. 2014)
(quotation omitted). When, as here, the defendant does not raise a procedural
reasonableness objection before the sentencing court, we review for plain error. See
United States v. Romero, 491 F.3d 1173, 1177 (10th Cir. 2007). “We find plain error
only when there is (1) error, (2) that is plain, (3) which affects substantial rights, and
(4) which seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 1178.
Defendant’s new reentry offense constituted a Grade B violation of his supervised
release terms. See U.S.S.G. § 7B1.1(a)(2) (defining a Grade B violation as “conduct
constituting any other federal, state, or local offense punishable by a term of
imprisonment exceeding one year”). With a criminal history category of IV, and a Grade
B supervised release violation, the district court correctly calculated Defendant’s
advisory Guidelines range as 12–18 months. See U.S.S.G. § 7B1.4(a). Because the
district court correctly calculated Defendant’s Guidelines range, and sentenced him
within it, we find no procedural error in this revocation sentence, much less one that is
plain and affects Defendant’s substantial rights. See Romero, 491 F.3d at 1178–79.
Next, we consider the substantive reasonableness of Defendant’s sentence “under
a deferential abuse-of-discretion standard.” Gieswein, 887 F.3d at 1063 (quoting United
States v. Lente, 759 F.3d 1149, 1158 (10th Cir. 2014)). We find an abuse of discretion
when the sentence imposed is “arbitrary, capricious, whimsical, or manifestly
unreasonable.” Id. at 1064 (quoting Lente, 759 F.3d at 1158). We presume a sentence
to be substantively reasonable when the district court “properly considers the relevant
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Guidelines range and sentences the defendant within that range.” United States v. Kristl,
437 F.3d 1050, 1055 (10th Cir. 2006). “The defendant may rebut this presumption by
demonstrating that the sentence is unreasonable in light of the other sentencing factors
laid out in § 3553(a).” Id. This “presumption is also appropriate in reviewing a
revocation-of-supervised-release sentence within the range suggested by the
Commission’s policy statements.” United States v. McBride, 633 F.3d 1229, 1233 (10th
Cir. 2011).
Here, we presume Defendant’s sentence is substantively reasonable because the
district court sentenced him to 12 months’ imprisonment—the lowest sentence within
the correctly calculated Guidelines range. See Kristl, 437 F.3d at 1055. In considering
the § 3553(a) factors, the district court noted the seriousness of Defendant’s prior
criminal conduct and his habitual illegal reentry. Based on these considerations, the
district court found a sentence of 12 months’ imprisonment “sufficient, but not greater
than necessary to satisfy the goals of sentencing on this supervised release violation.”
(ROA II at 16). Because the district court sentenced Defendant within the correctly
calculated Guidelines range and sufficiently considered the §3553(a) factors when
sentencing Defendant, we see nothing in the record that rebuts the presumption of
substantive reasonableness afforded to this within-Guideline’s sentence. We therefore
conclude the district court did not abuse its discretion when sentencing Defendant.
Finally, we address whether the district court abused its discretion by imposing a
consecutive sentence on Defendant. “Under 18 U.S.C. § 3584(a), a district court has
the discretion to impose consecutive or concurrent sentences.” United States v.
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Rodriguez-Quintanilla, 442 F.3d 1254, 1256 (10th Cir. 2006). Such discretion is guided
by “the characteristics of the offense and the defendant, the need for deterrence and the
protection of the public, and, in cases involving a violation of supervised release, ‘the
applicable guidelines or policy statements issued by the Sentencing Commission.’” Id.
(quoting 18 U.S.C § 3553(a)).
As indicated above, the district court noted the seriousness of Defendant’s prior
criminal conduct and his habitual illegal reentry when considering the § 3553(a) factors.
The district court also considered Defendant’s arguments for concurrent or evenly-split
concurrent/consecutive sentences, but did not find them persuasive. As we have
previously held, a “district court [is] well within its discretion to order [Defendant’s]
sentence for violation of his supervised release to run consecutively to his sentence for
illegal reentry.” United States v. Contreras-Martinez, 409 F.3d 1236, 1241 (10th Cir.
2005). Accordingly, Defendant’s sentence is not “arbitrary, capricious, whimsical, or
manifestly unreasonable.” Gieswein, 887 F.3d at 1064 (quoting Lente, 759 F.3d at
1158). The district court therefore did not abuse its discretion by imposing consecutive
sentences on defendant. See Rodriguez-Quintanilla, 442 F.3d at 1256.
We conclude that the record in this case does not present any non-frivolous issues
to appeal. Accordingly, consistent with Anders, 383 U.S. at 744, we GRANT defense
counsel’s motion to withdraw and DISMISS this appeal.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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