United States v. Tafolla-Zavala , 362 F. App'x 895 ( 2010 )


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  •                                                                        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    This order and judgment is not binding precedent, except under the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
    -2-
    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
    -3-
    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
    -4-
    

Document Info

Docket Number: 09-1057

Citation Numbers: 362 F. App'x 895

Judges: Briscoe, Holmes, Kelly

Filed Date: 1/21/2010

Precedential Status: Non-Precedential

Modified Date: 8/3/2023