United States v. Deleon-Victorino , 578 F. App'x 789 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 7, 2014
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-6175
(D.C. No. 5:13-CR-00068-F-1)
ESPIRIDION DELEON-VICTORINO, (W.D. Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before GORSUCH, O’BRIEN, and PHILLIPS, Circuit Judges.
Espiridion Deleon-Victorino pleaded guilty to unlawful reentry of a removed
alien subsequent to an aggravated felony conviction. The district court sentenced
him to 60 months in prison, which was toward the low end of the applicable 57-to-71
month guideline range, and Mr. Deleon-Victorino appealed. His attorney has since
filed an Anders brief and moved to withdraw, asserting there are no non-frivolous
issues for appeal. See Anders v. California, 386 U.S. 738 (1967). This court twice
*
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 Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
notified Mr. Deleon-Victorino of his opportunity to file a pro se brief, but he has not
responded and the time to do so has passed. We have independently reviewed the
record and agree with counsel’s assessment. Accordingly, exercising jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we grant the motion to withdraw
and dismiss the appeal.
Under Anders, defense counsel may move to withdraw if, after conscientiously
examining the case, counsel determines that an appeal would be “wholly frivolous.”
386 U.S. at 744. “[C]ounsel must submit a brief to the client and the appellate court
indicating any potential appealable issues based on the record.” United States v.
Calderon, 428 F.3d 928, 930 (10th Cir. 2005). The client may also file a pro se
response. Anders, 386 U.S. at 744. We then independently examine the record to
determine “whether the case is wholly frivolous.” Id. If we agree with counsel’s
assessment, we grant the motion to withdraw and dismiss the appeal. Id.
Mr. Deleon-Victorino’s attorney has identified several potential issues
challenging the procedural and substantive reasonableness of his sentence. First, she
notes that the pre-sentence investigation report (PSR) separately assessed criminal
history points for two prior sentences that resulted from a single arrest. She
concedes, however, that this issue is frivolous because USSG § 4A1.2(a)(2) expressly
states, “If there is no intervening arrest, prior sentences are counted separately unless
(A) the sentences resulted from offenses contained in the same charging instrument;
or (B) the sentences were imposed on the same day.” There was no intervening arrest
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here and neither exception applies. Mr. Deleon-Victorino was sentenced in federal
court on January 21, 2003, for the offense of illegal reentry, and he was separately
sentenced in a Texas state court on February 14, 2003, for the offense of tampering
with a government record. See R., Vol. 2 at 19 (PSR para. 49-50). The PSR
correctly assessed separate criminal history points for each sentence.
Counsel also submits that the district court’s statement of reasons for the
sentence imposed was not sufficiently detailed. Yet she recognizes that “[w]here a
district court imposes a sentence falling within the range suggested by the
Guidelines, Section 3553(c) requires the court to provide only a general statement of
the reasons for its imposition of the particular sentence.” United States v. Chavez,
723 F.3d 1226, 1232 (10th Cir. 2013) (internal quotation marks omitted). At
sentencing, the district court heard counsel’s arguments, explained why he chose a
sentence within the 57-to-71 month guideline range without a departure or variance,
and imposed a sentence of 60 months, taking into account all of the factors of
18 U.S.C. § 3553(a). We agree with counsel that the district court’s explanation was
legally adequate.
Additionally, counsel posits that the sentence is substantively unreasonable
because Mr. Deleon-Victorino’s base offense level was increased by sixteen levels
pursuant to USSG § 2L1.2(b)(1)(A)(vii) because he was previously removed after an
alien smuggling offense. Although a sentence within a correctly calculated guideline
range is presumptively reasonable, see Chavez, 723 F.3d at 1233, counsel suggests
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that § 2L1.2 places unfair emphasis on a defendant’s criminal history and lacks
empirical support for any sentencing objective. She acknowledges, however, that we
have squarely rejected this argument. See United States v. Alvarez-Bernabe,
626 F.3d 1161, 1166 (10th Cir. 2010). Counsel also offers various mitigating
circumstances that might have justified a lesser sentence, only some of which were
presented to the district court, though none demonstrate that the sentence imposed
was substantively unreasonable. See United States v. McComb, 519 F.3d 1049, 1053
(10th Cir. 2007) (“[T]here will be a range of possible outcomes the facts and law at
issue can fairly support.”).
Mr. Deleon-Victorino has failed to offer any non-frivolous issues and our
independent review confirms there are none. Accordingly, we grant defense
counsel’s motion to withdraw and dismiss this appeal.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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