FILED
United States Court of Appeals
Tenth Circuit
March 25, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-2148
(D.C. No. 2:08-CR-02892-RB-1)
JOSE ANTONIO DE LA TORRE, (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, BALDOCK, and HOLMES, Circuit Judges.
Jose Antonio De La Torre appeals his sentence imposed for reentry of a
removed alien in violation of 8 U.S.C. § 1326. Mr. De La Torre’s appointed
appellate counsel filed an Anders brief, seeking permission to withdraw as
counsel on the basis that the potential appellate issues are frivolous. See Anders
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
v. California, 386 U.S. 738, 744 (1967). Exercising jurisdiction under 28 U.S.C.
§ 1291, we grant counsel’s motion to withdraw and dismiss the appeal.
Mr. De La Torre pled guilty to reentry of a removed alien in violation of
8 U.S.C. § 1326. The presentence report (PSR) calculated his advisory guidelines
imprisonment range as 57 to 71 months. Mr. De La Torre moved for a downward
variance from that range, asking the district court to sentence him to time served.
At the sentencing hearing he requested a sentence within the range of 18 to 24
months. In response, the government recommended a sentence of 60 months.
The district court determined his guidelines range to be 57 to 71 months, but
sentenced Mr. De La Torre to a term of 42 months’ imprisonment, 15 months
below the bottom of the guidelines range.
Mr. De La Torre contends on appeal that his sentence is unreasonably long
and that he received ineffective assistance from his trial counsel. His appointed
appellate counsel states that he has conscientiously reviewed the record, discussed
the case with Mr. De La Torre and his trial counsel, and concluded that
Mr. De La Torre’s claims are wholly frivolous. Appellate counsel therefore filed
an Anders brief and a motion for permission to withdraw. Mr. De La Torre has
not filed a response to his counsel’s Anders brief.
In Anders, the Supreme Court directed that “if counsel finds his [client’s]
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
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must submit to the court and his or her client 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. See Anders, 386 U.S. at 744. We have conducted a full
examination of the record and we agree with Mr. De La Torre’s counsel’s
assessment that his claims are wholly frivolous.
“This court reviews a sentence for substantive reasonableness under the
abuse-of-discretion standard, and gives substantial deference to district courts.”
United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (quotation
omitted). 1 “Substantive reasonableness . . . involves whether the length of the
sentence is reasonable given all the circumstances of the case in light of the
factors set forth in [18 U.S.C.] § 3553(a).” Id. (quotation and brackets omitted).
Although the district court imposed a below-guidelines sentence,
Mr. De La Torre claims the court abused its discretion in failing to grant his
1
Mr. De La Torre did not object to the PSR and we have identified no basis
on which he could claim procedural error in the district court’s calculation of his
sentence. See Sayad, 589 F.3d at 1116 (noting “[r]easonableness review is a
two-step process” and “[p]rocedural reasonableness involves using the proper
method to calculate the sentence” (quotations omitted)).
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request for an even-greater downward variance from the guidelines range. See
United States v. Chavez-Diaz, 444 F.3d 1223, 1228 (10th Cir. 2006) (addressing
defendant’s challenge to “district court’s refusal to further depart downward from
the advisory guideline range”). The district court considered his plea for a
sentence of time served, or a maximum of 24 months’ imprisonment, but
concluded that a longer sentence was appropriate, particularly because his reentry
followed his felony convictions for possession with intent to distribute marijuana
and sexual assault of a minor. See 18 U.S.C. § 3553(a)(1) (instructing sentencing
court to “consider . . . the history and characteristics of the defendant”); id. at
§ 3553(a)(2) (directing sentencing court to consider factors including deterrence
of criminal conduct and protecting the public from further crimes). We find no
basis in the record to conclude that the district court abused its discretion in
imposing Mr. De La Torre’s sentence. See Chavez-Diaz, 444 F.3d at 1230
(concluding district court’s decision not to further reduce a below-guidelines
sentence did not render sentence unreasonable).
Mr. De La Torre also contends that he was denied effective assistance of
counsel. “Ineffective assistance of counsel claims should be brought in collateral
proceedings, not on direct appeal. Such claims brought on direct appeal are
presumptively dismissible, and virtually all will be dismissed.” Calderon,
428 F.3d at 931 (quotation omitted). Thus, regardless of whether
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Mr. De La Torre’s ineffective-assistance claim is substantively meritorious, we
will not address it in this appeal. See id. at 932.
We have fully examined the record to determine whether there are any
other claims arguable on their merits, and have found that Mr. De La Torre’s
appeal is wholly frivolous. Accordingly, we DISMISS the appeal and GRANT
counsel’s motion for leave to withdraw.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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