United States v. Balderama-Mendez , 215 F. App'x 706 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 29, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-2248
v. (D. New M exico)
JESUS BALD ERAM A-M END EZ, (D.C. No. 06-CR-1188-JC)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **
Jesus Balderama-M endez pleaded guilty to unlawful reentry by a deported
alien previously convicted of an aggravated felony. The district court sentenced
him to fifty-seven months’ imprisonment. Counsel for M r. Balderama-M endez
has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
moved to withdraw. After considering the Anders brief and examining the record,
*
This order and judgment is not binding precedent except under the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 appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
we conclude that no non-frivolous grounds for appeal exist. W e therefore grant
counsel’s motion to withdraw and dismiss the appeal.
I.
The United States Border Patrol apprehended M r. Balderama-M endez
during a traffic stop near Carlsbad, New M exico. W hen questioned by border
patrol agents, M r. Balderama-M endez admitted he was a M exican citizen and
illegally entered the U nited States. A records check subsequently revealed M r.
Balderama-M endez was deported on August 14, 2001 due to a prior felony
conviction for aggravated battery.
M r. Balderama-M endez pleaded guilty, without a plea agreement, to one
count of unlawful reentry by a deported alien previously convicted for an
aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). The United
States Probation Office prepared a Presentence Report (PSR ). Pursuant to §
2L1.2 of the United States Sentencing Guidelines (U.S.S.G.), M r. Balderama-
M endez’s base offense level was eight. The PSR recommended a sixteen-level
enhancement based on the prior conviction for aggravated battery. See U.S.S.G.
§ 2L1.2(b)(1). A three-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1 brought M r. Balderama-M endez’s final offense level to twenty-
one. The PSR assessed a total of nine criminal history points against M r.
Balderama-M endez under U.S.S.G. § 4A1.1: three points for his aggravated
battery conviction under § 4A1.1(a); two points for a misdemeanor battery
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conviction under § 4A1.1(b); and the maximum of four points for five other
misdemeanor convictions under § 4A1.1(c). In addition, M r. Balderama-M endez
received zero points for a burglary conviction, a battery conviction, and four D U I
convictions because they occurred more than ten years before the border patrol
apprehended him. See U.S.S.G. § 4A1.2(e)(3). In accordance with the sentencing
guidelines, nine criminal history points placed M r. Balderama-M endez in criminal
history category IV. U.S.S.G. Ch. 5, Pt. A (Sentencing Table). An adjusted
offense level of twenty-one and a criminal history category of IV yielded a
suggested sentencing range of 57 to 71 months.
At sentencing, M r. Balderama-M endez did not object to the PSR or request
a downward departure. Rather, he asked for a sentence at the lower-end of the
advisory guidelines range. The district court obliged and sentenced M r.
Balderama-M endez to 57 months’ imprisonment.
M r. Balderama-M endez subsequently directed his defense counsel to appeal
the district court’s calculation of his offense level and criminal history category
under the sentencing guidelines. Counsel filed a motion to withdraw and an
Anders brief, asserting that there are no non-frivolous issues for appeal.
II.
Under Anders v. California, counsel may request permission to withdraw
from an appeal if counsel conscientiously examines the case and determines that
there are no non-frivolous issues for appeal. 386 U.S. at 744. Counsel must in
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addition submit to both the court and his client a brief referring to anything in the
record arguably supporting an appeal. The client may then raise any points he
chooses, and the appellate court thereafter undertakes an independent examination
of the proceedings and determines whether the appeal is in fact wholly frivolous.
If it so finds, the appellate court may grant counsel’s request to withdraw and
dismiss the appeal. If, however, the court determines there are meritorious
grounds for appeal in the record, the court must appoint the defendant new
counsel to argue the appeal. Id.As indicated above, the Anders brief of M r. Balderama-M endez’s counsel
states that there are no non-frivolous issues for appeal. M r. Balderama-M endez,
despite being advised of his right to file a pro se supplemental brief, has chosen
not to provide any additional materials to the court.
After a deliberate review of the record, we agree with defense counsel that
there are no non-frivolous appealable issues. To begin, M r. Balderama-M endez
pleaded guilty to illegal reentry and there is no evidence in the record that his
plea was made unknowingly or involuntarily. In addition, there are no errors in
the district court’s calculations of M r. Balderama-M endez’s offense level and
criminal history category. W e also note that M r. Balderama-M endez failed to
object to those calculations below and received the exact sentence he requested at
the sentencing hearing. Finally, we cannot detect any basis in the record for
ignoring the presumption of reasonableness afforded to M r. Balderama-M endez’s
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lower-end guidelines sentence. See United States v. Kristl, 437 F.3d 1050, 1054
(10th Cir. 2006).
III.
For the foregoing reasons, we GRANT counsel’s motion to withdraw and
DISM ISS this appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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