United States v. Ijom-Brito , 530 F. App'x 770 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT July 29, 2013
___________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 13-5003
IGNACIO IJOM-BRITO, (D.C. No. 4:12-CR-00030-JHP-1)
(N.D. Okla.)
Defendant-Appellant.
____________________________________
ORDER AND JUDGMENT*
____________________________________
Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.**
____________________________________
Defendant Ignacio Ijom-Brito pleaded guilty to one count of bringing in and
harboring aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (a)(1)(B)(i). The
presentence report (PSR) assigned a total offense level of 12 after a six-level increase for
involuntary detention by coercion or threat, a four-level decrease for being a minimal
participant, and a two-level decrease for acceptance of responsibility. See U.S.S.G. §§
2L1.1; 2L1.1(b)(8)(A); 3B1.2(a); 3E1.1(a) (2012). Defendant’s criminal history was
*
This order and judgment is not binding precedent except under the doctrines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 parties’ briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Category I, yielding a guideline range of 10–16 months. See U.S.S.G. §5A (2012). The
Government moved for a one-level downward departure pursuant to Guidelines Section
5K1.1 because of Defendant’s substantial assistance, which resulted in a total offense
level of 11 and a corresponding guideline range of 8–14 months. The court sentenced
Defendant to 14 months’ imprisonment.
After filing a timely notice of appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and moved to withdraw as counsel. Counsel identified
nothing within the appellate or district court records that could arguably support a
reversal of either the conviction or the sentence. Under Anders, “a copy of counsel’s
brief should be furnished the indigent and time allowed him to raise any points that he
chooses.” Id. at 744. Because immigration authorities removed Defendant to Guatemala
upon completion of his custodial term, he has not filed a response. Agreeing with
defense counsel’s conclusion that no non-frivolous issues supported Defendant’s appeal,
the Government did not file an answer. For the reasons that follow, we dismiss the
appeal and grant counsel’s motion to withdraw.
I.
Anders allows an attorney who, upon a conscientious review of the record finds an
appeal to be wholly frivolous, to advise the court of this fact and petition to withdraw as
counsel. See Anders, 386 U.S. at 744. “The Constitutional requirement of substantial
equality and fair process can only be attained where counsel acts in the role of an active
advocate in behalf of his client . . . .” Id. Accordingly, a motion to withdraw pursuant to
Anders must be accompanied by a brief referring to anything in the record that might
-2-
arguably support the appeal. Id. When an Anders brief is filed, the court of appeals
must engage in an independent analysis of the record to satisfy itself of two things. First,
it must “satisfy itself that the attorney has provided the client with a diligent and thorough
search of the record for any arguable claim that might support the client’s appeal.
Second, it must determine whether counsel has correctly concluded that the appeal is
frivolous.” McCoy v. Ct. App. Wis. Dist. 1, 486 U.S. 429, 442 (1988). If the court
concludes the appeal is wholly frivolous, it may grant counsel’s motion to withdraw and
dismiss the appeal. United States v. Calderon 428 F.3d 928, 930 (10th Cir. 2005).
Because neither Defendant’s notice of appeal or brief specify whether he appeals his
conviction or his sentence, we will address both.
II.
We turn first to Defendant’s conviction. Defendant was convicted upon entering a
guilty plea. To comport with constitutional requirements, a defendant’s guilty plea must
be both knowing and voluntary. McCarthy v. United States, 394 U.S. 459, 466, (1969).
“[B]ecause a guilty plea is an admission of all the elements of a formal criminal charge, it
cannot be truly voluntary unless the defendant possesses an understanding of the law in
relation to the facts.” Id. Federal Rule of Criminal Procedure 11 is designed to assist the
district judge in ensuring that a guilty plea is “knowing and voluntary.” See Fed. R.
Crim. P. 11. Although district courts are required to comply with the procedures set forth
in Rule 11, “[a]ny variance from the procedures required by this rule which does not
affect substantial rights shall be disregarded as harmless error.” Fed. R. Crim. P. 11(h);
United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998). “The issue of whether a
-3-
district court has substantially complied with rule 11, including an analysis under
subsection 11(h), before accepting a guilty plea, is a question of law subject to review de
novo.” United States v. Vaughn, 7 F.3d 1533, 1535 (10th Cir. 1993); see also United
States v. Browning, 61 F.3d 752, 753 (10th Cir.1995). An analysis under subsection
11(h) requires that “[w]e review either for harmless or plain error, depending on whether
defense counsel objected to the validity of the plea at the district court level.” United
States v. Vidal, 561 F.3d 1113, 1118 (10th Cir. 2009) (citing United States v. Vonn, 535
U.S. 55, 59 (2002)).
Defendant did not move to withdraw his guilty plea or otherwise object to any
alleged error during his plea hearing. Thus, we review for plain error. At Defendant’s
Rule 11 plea colloquy, the magistrate judge properly advised and questioned him in
accordance with the rule’s requirements. Id. The record shows that Defendant
understood his rights, the nature of the charge to which he was pleading, the maximum
possible penalty, and the terms of his plea agreement. See Fed. R. Crim P. 11. Nothing
supports the contention that his decision to plead guilty was involuntary. Accordingly,
we find no grounds for reversing Defendant’s conviction.
Counsel points out the district court failed to inform Defendant that the sentencing
court would “calculate the applicable sentencing-guideline range and to consider that
range, possible departures under the Sentencing Guidelines, and other sentencing factors
under 18 U.S.C. § 3553(a) . . . .” See Fed. R. Crim. P. 11(b)(1)(M). However, the plea
agreement informed Defendant of these aspects of his plea. Accordingly, as appellate
counsel correctly points out, the district court’s omission does not allow for a withdrawal
-4-
of the plea under plain error standards. We have previously held that where the
defendant “receives the information omitted by the district court from other sources [he]
generally cannot demonstrate that he would not have pleaded guilty had the court so
informed him.” United States v. Ferrel, 603 F.3d 758, 763-64 (10th Cir. 2010). See also,
Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (“[T]he constitutional prerequisites of a
valid plea may be satisfied where the record accurately reflects that the nature of the
charge and the elements of the crime were explained to the defendant by his own,
competent counsel.”).
III.
Turning to Defendant’s sentence, we confront a jurisdictional problem. Defendant
has completed his custodial sentence and been removed to Guatemala. “[W]hen the
injury for which an appellant seeks judicial relief disappears or is resolved extrajudicially
prior to the appellate court’s decision, the appellant can no longer satisfy the Article III
case or controversy jurisdictional requirement and the appeal is moot.” United States v.
Meyers, 200 F.3d 715, 718 (10th Cir. 2000), citing Burke v. Barnes, 479 U.S. 361, 363
(1987). Once the defendant has served his sentence, no direct injury can be redressed
through judicial action. “[S]ome concrete and continuing injury other than the now-
ended incarceration . . . must exist if the suit is to be maintained.” See Spencer v.
Kemna, 523 U.S. 1, 7 (1998). Thus, unless Defendant can point to some collateral
consequence attributable to his sentence the issue is moot on appeal.
Counsel has not identified, and this court has been unable to find, any collateral
consequences that can be effectively redressed through judicial action. Defendant’s
-5-
offense of bringing in and harboring aliens is an aggravated felony. See 8 U.S.C. §
1101(a)(43)(N). An alien convicted of an aggravated felony is permanently inadmissible
into the United States. See 8 U.S.C. § 1182(a)(9)(A)(ii)(II).
In United States v. Jurado-Lara, 287 F. App’x 704, 707 (10th Cir. 2008)
(unpublished), we held a sentencing appeal was not moot where the defendant’s sentence
was classified as an aggravated felony based on the length of the sentence imposed. See
8 U.S.C. § 1101(a)(43)(P) (defining as an aggravated felony fraud offenses “for which
the term of imprisonment is at least 12 months”). We reasoned that we could afford the
defendant relief because if “the application of [a] six-level enhancement was erroneous,
the upper end of the corrected advisory guideline range would be under 12 months” and
he would not be subject to the aggravated-felony conviction rendering him permanently
inadmissible. Jurado-Lara, 287 F. App’x at 707. Here, however, defendant’s
classification as an aggravated felon is dependent upon the nature of his crime rather than
the length of his sentence. See 8 U.S.C. § 1101(a)(43)(N) (defining a violation of 8
U.S.C. § 1324(a)(1)(A) or (2) as an aggravated felony except for a first offense involving
the defendant’s family members). Thus, a favorable decision regarding his sentence
would not change Defendant’s conviction for an aggravated felony or his inadmissibility
pursuant to 8 U.S.C. § 1182(a)(9)(A)(ii)(II). Consequently, we find the sentencing issue
moot on appeal.
-6-
We DISMISS the appeal and GRANT counsel’s motion to withdraw from
representation.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
-7-