United States v. Morales-Cruz , 644 F. App'x 821 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 24, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-5071
(D.C. Nos. 4:15-CR-00059-GKF-1)
JHONY MORALES-CRUZ, (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
Mr. Jhony Morales-Cruz pleaded guilty to one count of illegal
reentry after a prior removal. See 8 U.S.C. § 1326(a). Accepting the plea,
the district court sentenced Mr. Morales-Cruz to six months’ imprisonment
and a one-year term of supervised release. Mr. Morales-Cruz appealed in
July 2015 and completed the prison term roughly two months later. He was
then removed to Mexico.
*
The parties have not requested oral argument, and the Court concludes that oral
argument would not materially aid our consideration of the appeal. See Fed. R. App. P.
34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based on the briefs.
Our order and judgment does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. Fed. R. App. P. 32.1(a);
10th Cir. R. 32.1(A).
Counsel for Mr. Morales-Cruz moves to withdraw under Anders v.
California, 386 U.S. 738 (1968). Applying Anders, we conclude that any
appellate challenges would be frivolous. Thus, we grant the motion to
withdraw and dismiss the appeal.
I. Anders v. California
Under Anders v. California, attorneys can seek leave to withdraw
from an appeal when they conscientiously examine a case and determine
that an appeal would be frivolous. Anders v. California, 386 U.S. 738, 744
(1967). To obtain leave to withdraw, an attorney 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 [c]ourt
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.
United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005).
Defense counsel filed a brief, moving to withdraw. In deciding
whether to grant this motion, we consider defense counsel’s brief and the
record on appeal.
II. Possible Challenges to the Sentence
Any possible challenge to the prison term would be moot because Mr.
Morales-Cruz has completed this part of the sentence. If he appealed the
six-months’ sentence, that part of the appeal would become moot. See
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United States v. Quezada-Enriquez, 567 F.3d 1228, 1232 n.2 (10th Cir.
2009) (“[T]he sentence itself ends upon release and any subsequent
challenge to its length is generally futile.”).
Though Mr. Morales-Cruz remains under supervised release, his
removal “eliminate[s] all practical consequences” of the supervised-release
conditions. United States v. Vera-Flores, 496 F.3d 1177, 1181-82 (10th
Cir. 2007). As a result, a challenge to the supervised release term would be
moot. Id.III. Possible Challenges to the Conviction
We also conclude that no valid grounds exist for a challenge to the
conviction. Mr. Morales-Cruz pleaded guilty and the district court accepted
his plea after an extensive colloquy. The district court sufficiently advised
and questioned Mr. Morales-Cruz to ensure that the guilty plea was
voluntarily, knowingly, and intelligently entered. Thus, we have no
reasonable basis to question the validity of the guilty plea.
IV. Conclusion
We grant counsel’s motion to withdraw and dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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