United States v. Cervantes-Valeriano , 606 F. App'x 466 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT June 2, 2015
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 14-6233
(D.C. No. 5:14-CR-00246-HE-1)
RAFAEL CERVANTES-
(W.D. Oklahoma)
VALERIANO, a/k/a Lorenzo
Sanchez, a/k/a Arturo Cervantes,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, MURPHY and BACHARACH, Circuit Judges.
Mr. Rafael Cervantes-Valeriano was convicted of illegal reentry. For
sentencing, the guideline range was 57 to 71 months, and the district court
*
The Court has determined that oral argument would not materially
aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2); 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.
varied downward 1 to sentence Mr. Cervantes-Valeriano to 56 months in
prison. Mr. Cervantes-Valeriano appealed, challenging only the length of
his sentence.
Mr. Cervantes-Valeriano’s appointed counsel filed a brief invoking
Anders v. California, 386 U.S. 738 (1967), and moving to withdraw from
representation based on the absence of any arguably meritorious appeal
points. See Anders v. California, 386 U.S. 738 (1967). We conclude that
the only grounds for appeal would be frivolous. Thus, we grant the motion
to withdraw and dismiss the appeal.
I. Anders
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. 736, 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).
1
The court varied downward to give Mr. Cervantes-Valeriano credit
for a month he had spent in immigration custody.
2
Defense counsel filed a brief, and Mr. Cervantes-Valeriano bypassed
the opportunity to file his own brief. In these circumstances, we base our
decision on (1) the brief filed by defense counsel, and (2) the record on
appeal.
II. Standard of Review
We have nothing to suggest an error in the guideline calculation, and
the sentence fell below the guideline range. As a result, the sentence is
presumptively reasonable in length. See United States v. Trent, 767 F.3d
1046, 1051 (10th Cir. 2014). The presumption is rebuttable, but Mr.
Cervantes-Valeriano bears the burden of showing that the sentence is
unreasonable under the sentencing factors in 18 U.S.C. § 3553(a). United
States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).
III. Reasonableness of the Sentence
To attempt that showing, Mr. Cervantes-Valeriano could argue that
(1) the guideline range unfairly double counts prior convictions, (2) an
enhancement under § 2L1.2(b)(1)(A) lacks empirical support, and (3) the
court should have applied a downward variance. These arguments would be
frivolous.
We have already upheld the same guideline against a similar
challenge involving double counting of prior convictions. United States v.
Algarate-Valencia, 550 F.3d 1238, 1245 (10th Cir. 2008).
3
We have also rejected a challenge to the enhancement under
§ 2L1.2(b)(1)(A), holding that it is valid even if the Sentencing
Commission did not provide empirical support. United States v. Alvarez-
Bernabe, 626 F.3d 1161, 1166 (10th Cir. 2010).
Finally, the district court considered the sentencing factors in 18
U.S.C. § 3553(a), stating that the guideline calculation was reasonable “in
terms of evaluating the seriousness of the offense,” “the need to deter [Mr.
Cervantes-Valeriano] from the prospect of returning illegally again,” and
“the need to protect the public from the risk of further crimes.” Sentencing
Tr. at 10-12. We have no reason to question this explanation.
No court could characterize the sentence as unreasonable. A s a result,
we grant counsel’s motion to withdraw and dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
4