United States v. Hernandez-Solis ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 6, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 07-1109
v. (D.C. No. 06-cr-00386-EW N)
(D . Colo.)
M ARIA HERNANDEZ-SOLIS,
Defendant - Appellant.
OR DER AND JUDGM ENT *
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
M aria Hernandez-Solis pled guilty to a one-count indictment charging her
with illegal re-entry of a deported alien previously convicted of an aggravated
felony. See 8 U.S.C. § 1326(a), (b)(2). The district court sentenced her to 27
months imprisonment, followed by three years of supervised release. On appeal,
M s. Hernandez-Solis’s counsel filed an Anders brief and moved to withdraw as
counsel. See Anders v. California, 386 U.S. 738 (1967). W e received no
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant counsel’s request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent except under the doctrines of law of the case,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.
response from M s. Hernandez-Solis, and the government also declined to file a
response. For the reasons set forth below, we discern no meritorious issues for
appeal, and we therefore grant the motion to withdraw and dismiss the appeal.
* * *
Authorities found M s. Hernandez-Solis, a native of M exico, in Colorado in
August 2006, after she had been deported from the United States on five prior
occasions. She was charged with one count of illegal re-entry following
deportation, in violation of 8 U.S.C. § 1326(a). Because her prior deportation
was subsequent to a conviction for an aggravated felony, M s. Hernandez-Solis
faced a possible prison sentence of up to 20 years, pursuant to 8 U.S.C.
§ 1326(b)(2). M s. Hernandez-Solis pled guilty to the one-count indictment
pursuant to a written plea agreement with the government.
Pursuant to the advisory United States Sentencing Guidelines
(“Guidelines”), M s. Hernandez-Solis’s conviction carried a base offense level of
8. See U.S.S.G. § 2L1.2(a). But because she had been deported following a
conviction for an aggravated felony, the Guidelines recommended an 8-level
enhancement. See id. § 2L1.2(b)(1)(C). Subtracting 3 levels for acceptance of
responsibility, M s. Hernandez-Solis’s final suggested offense level was 13.
Additionally, because of her prior convictions, M s. Hernandez-Solis was
classified at criminal history category level IV. That offense level and criminal
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history category produced a proposed Guidelines sentencing range of 24-30
months imprisonment with 2-3 years of supervised release.
M s. Hernandez-Solis did not challenge any aspect of the presentence report,
which included the Guidelines range calculation and information about her
background, family, and other potentially relevant factors. At the sentencing
hearing, M s. Hernandez-Solis’s counsel requested a sentence at the “low end” of
the Guidelines range, pursuant to the sentencing factors set out in 18 U.S.C.
§ 3553(a), because M s. Hernandez-Solis “essentially grew up” in the United
States and her children currently reside here. Sentencing Hr’g Tr. at 3-4.
There being no objection to the presentence report, the district court
adopted its factual findings and G uidelines range calculation; the court also
acknowledged it had taken “full consideration of the factors specified” in 18
U.S.C. § 3553(a). Id. at 5, 7. The court stated that, although it understood the
circumstances that caused M s. Hernandez-Solis “to keep coming back to this
country,” she has “a serious criminal history and does not appear to have been
significantly deterred by prior prison sentences.” Id. at 6. As a result, the district
court imposed a sentence of 27 months— in the middle of the Guidelines
range— finding that such sentence “is sufficient but not greater than necessary to
achieve the statutory purposes of a sentence of incarceration, including the need
for the sentence imposed to reflect the seriousness of the offense, to promote
respect for the law , to provide just punishment for the offense, to afford adequate
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deterrence to criminal conduct, and to protect the public from further crimes of
the defendant.” Id.* * *
Pursuant to the Supreme Court’s decision in Anders v. California, a court-
appointed defense counsel may “request permission to withdraw [from an appeal]
where counsel conscientiously examines a case and determines that any appeal
would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th
Cir. 2005) (citing Anders, 386 U.S. at 744). This process requires counsel to
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 w hether 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.
Id. (citing Anders, 386 U.S. at 744).
In her Anders brief, counsel noted that this appeal would conceivably be
meritorious only if (1) the guilty plea w ere not voluntary or (2) the sentence w ere
unreasonable. A fter conducting a full examination of the record, we agree with
counsel’s conclusion that no basis in law or fact exists for either of these
arguments.
A valid guilty plea must be knowingly, intelligently, and voluntarily made.
See United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998); see also Fed. R.
Crim. P. 11. The record indicates that the district court fulfilled the requirements
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set out in Rule 11 and those announced in Gigot to ensure the validity of the plea.
See Plea Hr’g Tr. (indicating that the district court judge verified a factual basis
for the plea, questioned the defendant and confirmed that she fully understood the
charges against her and the consequences of the plea, and otherwise ensured that
the plea was freely, voluntarily, and intelligently made). M s. Hernandez-Solis
has failed to put forward any evidence or arguments that would place the plea’s
validity in doubt, and so any appeal on these grounds would be frivolous.
W e also fail to find any non-frivolous grounds for appeal as to the
reasonableness of the sentence. As counsel points out, the sentence fell in the
middle of the Guidelines range; as such, we accord it a presumption of
reasonableness. See Rita v. United States, 127 S. Ct. 2456, 2462-63 (2007).
Bearing in mind the various sentencing factors set forth by Congress in 18 U.S.C.
§ 3553(a), we find no evidence indicating that the district court abused its
discretion in any way in sentencing M s. Hernandez-Solis. The district court
explained its decision to impose a sentence in the middle of the Guidelines range
in terms of the factors under 18 U.S.C. § 3553(a), remarking on M s. Hernandez-
Solis’s criminal history and indicating that she “does not appear to have been
significantly deterred by prior prison sentences.” The court fully considered M s.
Hernandez-Solis’s background and the applicable 18 U.S.C. § 3553(a) factors in
fashioning her sentence. W e can find no evidence indicating any possible
grounds for appeal of this sentence.
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* * *
For the foregoing reasons, we grant counsel’s motion to withdraw and
dismiss the appeal.
ENTERED FOR THE COURT
Neil M . Gorsuch
Circuit Judge
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