FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 17, 2013
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 12-2091
v. (D.C. No. 2:12-CR-00246-JAP-1)
(D. N.M.)
PEDRO ALCANTAR-AGUIRRE, JR.,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.
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.
Appellant Pedro Alcantar-Aguirre, Jr. pled guilty to one count of unlawful
*
This order and judgment is not binding precedent except under the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.
possession of ammunition by a convicted felon in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). The district court sentenced him to fifty-seven
months imprisonment–at the low end of the United States Sentencing Guidelines
(“Guidelines” or “U.S.S.G.”) range of fifty-seven to seventy-one months
imprisonment. Although Mr. Alcantar-Aguirre appeals his conviction and
sentence, his attorney has filed an Anders brief and a motion for permission to
withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967). For
the reasons set forth hereafter, we grant counsel’s motion to withdraw and dismiss
this appeal. Id.
I. Background
During a traffic stop, Mr. Alcantar-Aguirre admitted to a Las Cruces, New
Mexico police officer that he possessed a round of .22 caliber ammunition in his
shoe. In addition, an inventory search of the vehicle resulted in officers finding
twenty-four rounds of .22 caliber ammunition in the glove compartment and one
round of the same ammunition under the front passenger floorboard. In a post-
Miranda interview, Mr. Alcantar-Aguirre admitted he possessed several rounds of
.22 caliber ammunition in his pants pockets and had hidden the ammunition found
in the glove compartment and on the floorboard when the police officer pulled
him over for the traffic stop. He also admitted he was a convicted felon recently
released from prison.
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Thereafter, Mr. Alcantar-Aguirre pled guilty, without the benefit of a plea
agreement, to unlawfully possessing ammunition by a convicted felon in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). A federal magistrate judge questioned
Mr. Alcantar-Aguirre on his age, physical and mental condition, and whether he
was under the influence of alcohol, drugs, or any medication; advised him of the
charges against him, his constitutional rights, and the possible consequences of
his guilty plea, including the maximum possible penalties associated with that
plea; and questioned him on whether he consulted and was satisfied with his
counsel’s representation. 1 After noting the factual predicate to sustain his plea
had been provided, and following allocution by Mr. Alcantar-Aguirre on the
elements of the charge against him, the magistrate found Mr. Alcantar-Aguirre
fully understood the charge against him; the terms of pleading guilty and the
consequences of his plea; and that his guilty plea was freely, voluntarily, and
intelligently made.
1
While neither counsel for Mr. Alcantar-Aguirre nor the government
provided a copy of the plea hearing transcript as part of the record on appeal, Mr.
Alcantar-Aguirre’s counsel provides representations as to the content of the
discussion at the plea hearing. Generally, “[w]hen the party asserting an issue
fails to provide a record sufficient for considering that issue, [this] court may
decline to consider it.” 10th Cir. R. 10.3(B). However, in this case, the absence
of the transcript of the plea hearing does not affect our disposition of Mr.
Alcantar-Aguirre’s appeal. This is because we assume his appellate counsel’s
representations with respect to the contents of the document are accurate,
especially in the absence of any objections by either the government or Mr.
Alcantar-Aguirre as to those representations. Nevertheless, counsel is reminded
that in any future filing, any relied-on and referenced portion of the record should
be designated and provided as part of the appeal record.
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Following Mr. Alcantar-Aguirre’s guilty plea, a probation officer prepared
a presentence report calculating his sentence under the applicable 2011
Guidelines. The probation officer recommended a base offense level of twenty-
four, under U.S.S.G. § 2K2.1(a)(2), because Mr. Alcantar-Aguirre committed the
instant offense subsequent to at least two felony convictions for crimes of
violence and further recommended a three-level reduction for acceptance of
responsibility. The resulting offense level of twenty-one, together with his
criminal history category of IV, resulted in a sentencing range of fifty-seven to
seventy-one months imprisonment. In discussing any possible circumstances
warranting a departure, the probation officer stated she had considered a
departure under U.S.S.G. § 5H1.3 based on mental and emotional conditions
which might distinguish Mr. Alcantar-Aguirre’s characteristics from a typical
case. In discussing such a departure, the probation officer noted Mr. Alcantar-
Aguirre had been diagnosed with Attention Deficit Hyperactivity Disorder,
Oppositional Defiant Disorder, and Organic Brain Dysfunction from inhalant
abuse, and had been classified as Severely Disabled Mentally Ill. However, in
recommending that Mr. Alcantar-Aguirre’s mental and emotional conditions did
not distinguish him from the typical case for the purpose of qualifying for a
downward departure, the probation officer pointed out nothing indicated the
instant offense was a direct result of his mental health status, given he
demonstrated he knew possessing ammunition was wrong when he attempted to
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hide it. The probation officer also pointed out his extensive criminal history was
troubling and that he would receive the necessary mental health counseling
through the Federal Bureau of Prisons. Even though Mr. Alcantar-Aguirre
experienced a troubled childhood, the probation officer also explained that a
disadvantaged upbringing and lack of guidance as a youth are not considered
relevant grounds for a departure under U.S.S.G. § 5H1.12.
Mr. Alcantar-Aguirre did not file any objections to the presentence report.
At the sentencing hearing, the district court adopted all of the factual statements
in the presentence report after Mr. Alcantar-Aguirre admitted all the statements of
fact were true and correct. The district court also stated it had considered the
information provided by Mr. Alcantar-Aguirre at his plea hearing, found he
knowingly, voluntarily, and intelligently entered his plea of guilty, and accepted
his guilty plea. It then sentenced him at the low end of the Guidelines range to
fifty-seven months imprisonment.
Through his appointed federal public defender, who also represented him
before the district court, Mr. Alcantar-Aguirre filed a notice of appeal.
Thereafter, this court granted Mr. Alcantar-Aguirre’s motion for withdrawal of
counsel and appointed new counsel to represent him on appeal. Mr. Alcantar-
Aguirre’s appellate counsel has now filed an Anders appeal brief and motion to
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withdraw as counsel, explaining no meritorious issues exist on appeal. See
Anders, 386 U.S. at 744. In support, counsel points out that after an extensive
and conscientious review of the record on appeal he finds Mr. Alcantar-Aguirre’s
appeal “wholly frivolous.” Nevertheless, in an effort to provide “any potential
appealable issues,” counsel notes Mr. Alcantar-Aguirre has a longstanding history
of severe mental issues, as indicated in the presentence report, which could have
impacted his ability to make a deliberate and intelligent choice with regard to his
plea. He also notes the presentence report outlined Mr. Alcantar-Aguirre’s
troubling childhood and that while lack of guidance as a youth and a
disadvantaged upbringing are not relevant grounds warranting a departure, other
circuits have departed in cases where the circumstances were exceptionally cruel.
However, counsel also points to our decision in United States v. Browning, 252
F.3d 1153, 1160 (10th Cir. 2001), in which we recognized another court’s
persuasive effort in distinguishing cruel psychological and emotional abuse from
the type of generalized lack of guidance or neglect § 5H1.12 prohibits. Id. at
1160. However, we also held we lacked jurisdiction to review a sentencing
court’s refusal to depart downward except in the rare circumstance it states it does
not have authority to depart. See id. at 1160-61.
Pursuant to the requirements in Anders, this court gave Mr. Alcantar-
Aguirre an opportunity to respond to his counsel’s Anders brief, which he failed
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to do. See 386 U.S. at 744. In addition, the government has filed a notice of its
intention not to file an answer brief in this appeal.
II. Discussion
As required by Anders, we have conducted a full examination of the record
before us. See id. While the record shows Mr. Alcantar-Aguirre suffers from
mental impairment, nothing in the record or the representations made to this court
indicate his guilty plea was not voluntarily, knowingly, and intelligently entered.
Indeed, both the federal magistrate judge and the district court, who were aware
of his mental impairment, found Mr. Alcantar-Aguirre voluntarily, knowingly,
and intelligently entered his guilty plea, and it is clear from the record that no
objection was raised with respect to this issue by Mr. Alcantar-Aguirre’s trial
counsel prior to, at the time of, or after his plea hearing. Moreover, while his
appellate counsel has raised the issue as a possible avenue for appeal, he has
nevertheless represented to this court that he conducted an extensive and
conscientious review of the record on appeal and found any appeal “wholly
frivolous.” In addition, as acknowledged by Mr. Alcantar-Aguirre’s counsel, a
lack of guidance as a youth and a disadvantaged upbringing are not considered
relevant grounds warranting a departure under the Guidelines, and we otherwise
lack jurisdiction to review a district court’s refusal to depart downward, except
where it states it does not have authority to depart, which is not the circumstance
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here. See Browning, 252 F.3d 1160-61.
As to Mr. Alcantar-Aguirre’s sentence, we review it for procedural and
substantive reasonableness. See United States v. Kristl, 437 F.3d 1050, 1053-55
(10th Cir. 2006) (per curiam). Having made such a review, we find no
nonfrivolous basis for challenging the sentence imposed. Mr. Alcantar-Aguirre,
through his counsel, does not contend the district court improperly calculated his
Guidelines range of fifty-seven to seventy-one months incarceration. Further, the
district court sentenced him to fifty-seven months imprisonment, which is within
the advisory Guidelines range and entitled to a rebuttable presumption of
reasonableness. Id. Mr. Alcantar-Aguirre has not rebutted this presumption with
any nonfrivolous reason warranting a lower sentence. Id. While his counsel
implies his mental status and challenging childhood might warrant a variant
sentence, he has not shown, and nothing in the record suggests, Mr. Alcantar-
Aguirre’s circumstances are atypical for the purpose of a variant sentence under
the 18 U.S.C. § 3553(a) sentencing factors.
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III. Conclusion
For these reasons, no meritorious appellate issue exists. Accordingly, we
GRANT counsel’s motion to withdraw and DISMISS Mr. Alcantar-Aguirre’s
appeal.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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