United States v. Payan-Carrillo ( 2023 )

Appellate Case: 22-2072 Document: 010110804180 Date Filed: 01/26/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 26, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-2072
(D.C. No. 2:22-CR-00672-MIS-1)
CESAR GUSTAVO PAYAN-CARRILLO, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, KELLY, and ROSSMAN, Circuit Judges.**
_________________________________
Defendant-Appellant Cesar Gustavo Payan-Carrillo challenges the district
court’s imposition of an 18-month consecutive sentence for violation of his
conditions of supervised release. That sentence runs consecutive to a 24-month
sentence imposed for his 2021 unlawful reentry. United States v. Cesar Gustavo
Payan-Carrillo, No. 22-CR-89 (D.N.M. June 1, 2022) (ECF No. 30). Mr. Payan-
Carrillo does not challenge the 2021 unlawful reentry sentence as that sentence 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This order and judgment is not binding precedent, except under the doctrines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 briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
Appellate Case: 22-2072 Document: 010110804180 Date Filed: 01/26/2023 Page: 2
imposed pursuant to a fast-track plea agreement with an appeal waiver. Anders Br. at
1; 2 R. 15. Mr. Payan-Carrillo’s counsel has moved to withdraw and filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), submitting that there are no
meritorious issues on appeal. On review of the record and the law, we agree.
Therefore, we grant counsel’s motion to withdraw and dismiss the appeal.
Background
On or about September 8, 2021, Mr. Payan-Carrillo illegally reentered the
United States in violation of 8 U.S.C. § 1326(a) & (b), as well as in violation of his
supervised release imposed in a 2016 unlawful reentry case. 1 R. 22–23. The district
court held a joint hearing on the revocation matter and sentencing in the 2021 reentry
case. At the hearing, the court found Mr. Payan-Carrillo voluntarily admitted to the
violation and waived his right to a hearing in connection with the violation report.
2 R. 3–4. The court considered Mr. Payan-Carrillo’s argument that past convictions
may have resulted in overly punitive sentences based on incorrect treatment of a past
marijuana charge as an aggravated felony but was also concerned about his past
dangerous behavior associated with prior convictions. Id. 10–12, 16–17.
Discussion
Under Anders, counsel may request permission to withdraw if upon thorough
examination of the record, counsel finds no non-frivolous basis for an appeal. United
States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). After counsel submits a brief
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describing any potential appealable issues to the court and to her client, the defendant
may then file a response containing his own arguments. Id. Despite being notified of
his entitlement and granted additional time to do so, Mr. Payan-Carrillo did not file a
response to counsel’s Anders brief. The government also declined to file a response.
Counsel’s Anders brief identifies two potentially appealable issues: (1) the
procedural and substantive reasonableness of the revocation sentence and (2) abuse
of the district court’s discretion in running the revocation and reentry sentences
consecutively. Anders Br. at 3. We have conducted our own examination of the
record, see Calderon, 428 F.3d at 930, and after having done so, we can discern no
non-frivolous basis for an appeal.
A. Reasonableness of the revocation sentence
As no procedural issues were raised at the sentencing hearing, we would
review the procedural reasonableness of Mr. Payan-Carrillo’s revocation sentence for
plain error. United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012). We would
generally review a sentence’s substantive reasonableness for abuse of discretion, but
a sentence imposed after revocation of supervised release is generally upheld unless
“plainly unreasonable.” Gall v. United States, 552 U.S. 38, 51 (2007); United States
v. Rodriguez-Quintanilla, 442 F.3d 1254, 1256–57 (10th Cir. 2006). Here, the
district court indicated that it had reviewed the violation report and the sentencing
factors applicable to supervised release violations. 2 R. 15. The court then
calculated Mr. Payan-Carrillo’s advisory Guidelines range. Id. 16. Defendant’s new
reentry offense constituted a Grade B violation of his supervised release, and, with a
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criminal history category of IV, Mr. Payan-Carrillo’s Guidelines range was 12 to 18
months. U.S.S.G. § 7B1.4(a). The court thus correctly calculated the advisory
Guidelines range and sentenced Mr. Payan-Carrillo within it. See 2 R. 16.
Therefore, the sentence is entitled to a presumption of reasonableness. See Rita v.
United States, 551 U.S. 338, 347 (2007); United States v. Leonhardt, 301 F. App’x
817, 820 (10th Cir. 2008) (unpublished). We discern no procedural error to rebut
that presumption, much less one that is plain. Likewise, we see no nonfrivolous basis
to challenge the court’s exercise of its discretion in imposing a Guidelines-range
sentence.
B. The decision to order the sentences consecutively
We would also review the decision to order consecutive sentences for abuse of
discretion. Rodriguez-Quintanilla, 442 F.3d at 1256. And, as earlier stated, a
sentence imposed after revocation of supervised release is generally upheld unless
“plainly unreasonable.” Id. at 1256–57. In addition to the factors outlined in 18
U.S.C. § 3553(a), the court’s discretion to order sentences consecutively or
concurrently is informed by applicable policy statements of the United States
Sentencing Commission. Id. Relevant here, U.S.S.G. § 7B1.3(f) states that
[a]ny term of imprisonment imposed upon the revocation of probation
or supervised release shall be ordered to be served consecutively to any
sentence of imprisonment that the defendant is serving, whether or not
the sentence of imprisonment being served resulted from the conduct
that is the basis of the revocation of probation or supervised release.
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18 U.S.C. § 7B1.3(f). The defendant carries the burden to demonstrate why ordering
consecutive sentences would be an abuse of discretion. Rodriguez-Quintanilla, 442
F.3d at 1256.
According to the record, after indicating its concerns and considering both
parties’ arguments, the district court explained its rationale for ordering the sentences
successively. The district court had sentenced Mr. Payan-Carrillo to the low end of
the advisory Guidelines in the 2021 unlawful reentry case but remained concerned
about his past dangerous behavior. 2 R. 7, 16–17. For these reasons, it determined
that a Guidelines-range, consecutive sentence in the revocation case was warranted.
Id. 16. We can see no reason to challenge the district court’s exercise of its
authority. See United States v. Contreras-Martinez, 409 F.3d 1236, 1241–42 (10th
Cir. 2005). Thus, there is no perceivable basis for appeal.
APPEAL DISMISSED. Counsel’s motion to withdraw is GRANTED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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