United States v. Aguirre-Cordero , 290 F. App'x 197 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
August 27, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Nos. 07-1299, 07-1300, 07-1301
v. (D.C. Nos. 01-CR-00433-WYD;
01-CR-00159-WYD; and
CRUZ ARTURO AGUIRRE- 06-CR-00462-WYD)
CORDERO, a/k/a Jose Morales- (D. Colo.)
Mosqueda, a/k/a Juan Carlos Aguirre,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, TYMKOVICH and HOLMES, Circuit Judges.
After he pleaded guilty to unlawful reentry as a deported alien previously
convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2),
the district court sentenced Cruz Aguirre-Cordero to 51 months’ imprisonment.
At the same hearing, Aguirre-Cordero admitted to violations of the terms of his
supervised release in two prior sentences. The district court imposed revocation
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) 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judgment is not binding precedent, except under the doctrines of law of the case,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. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 32.1.
sentences of 10 months’ and 18 months’ imprisonment to run concurrently with
each other, but consecutively to the 51-month sentence imposed for the unlawful
reentry conviction. In this consolidated appeal, Aguirre-Cordero challenges all
three sentences. Aguirre-Cordero’s counsel moves for leave to withdraw from the
case in a brief filed pursuant to Anders v. California, 386 U.S. 738 (1967).
Because we conclude that the record presents no nonfrivolous grounds for relief,
we grant counsel’s motion to withdraw and affirm Aguirre-Cordero’s sentences.
We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
I
In February 2000, Aguirre-Cordero was convicted in the District of New
Mexico of possession with intent to distribute less than 50 kilograms of
marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) (the “New Mexico
case”). The district court sentenced him to 10 months’ imprisonment, followed
by 2 years’ supervised release. Aguirre-Cordero was subsequently deported to
Mexico on July 5, 2000.
On March 28, 2001, during his term of supervised release, Aguirre-Cordero
was arrested on a traffic charge in Greeley, Colorado. Having illegally returned
to the United States, Aguirre-Cordero was then indicted on one count of unlawful
reentry of a deported alien previously convicted of an aggravated felony, in
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violation of 8 U.S.C. § 1326(a) and (b)(2) (the “prior unlawful reentry case”). 1
The government also alleged that Aguirre-Cordero’s unlawful reentry violated a
condition of his supervised release in the New Mexico case, which had been
transferred to the District of Colorado following the indictment for unlawful
reentry.
Aguirre-Cordero pleaded guilty to the unlawful reentry charge and admitted
to violating the condition of his supervised release. On the unlawful reentry
charge, the district court sentenced Aguirre-Cordero to 37 months’ imprisonment
followed by 3 years’ supervised release. The district court also revoked Aguirre-
Cordero’s supervised release in the New Mexico case and sentenced him to a
consecutive 4-month term of imprisonment followed by 32 months’ supervised
release. On April 26, 2004, following his release from prison, Aguirre-Cordero
was again deported to Mexico.
Nevertheless, on October 30, 2005, having once again reentered the United
States illegally, Aguirre-Cordero was arrested by the Colorado State Patrol and
charged in state court with possession of a controlled substance. He was
1
Aguirre-Cordero’s conviction in the New Mexico case provided the
predicate aggravated felony for this unlawful reentry charge. Under the
Immigration and Nationality Act, an “aggravated felony” includes “illicit
trafficking in a controlled substance . . ., including a drug trafficking crime.” 8
U.S.C. § 1101(a)(43)(B). In turn, under 18 U.S.C. § 924(c)(2), a “drug
trafficking crime” includes “any felony punishable under the Controlled
Substances Act (21 U.S.C. § 801 et seq.).” See Batrez Gradiz v. Gonzalez, 490
F.3d 1206, 1208 (10th Cir. 2007). Possession with intent to distribute less than
50 kilograms of marijuana is such a felony. See 21 U.S.C. § 841(b)(1)(D).
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convicted and, after serving part of a 15-month sentence, was paroled to the
custody of the Bureau of Immigration and Customs Enforcement. Throughout
this period, Aguirre-Cordero was subject to supervised release in both the New
Mexico case and the prior unlawful reentry case.
On November 13, 2006, Aguirre-Cordero was indicted for unlawful reentry
of a deported alien previously convicted of an aggravated felony, in violation of 8
U.S.C. § 1326(a) and (b)(2) (the “extant unlawful reentry case”). The government
also petitioned to revoke Aguirre-Cordero’s supervised release in the New Mexico
case and in the prior unlawful reentry case, on the grounds that he had violated
the conditions of his release by (1) unlawfully reentering the United States and
(2) unlawfully possessing a controlled substance. Aguirre-Cordero subsequently
pleaded guilty to the extant unlawful reentry charge and admitted to both
violations of his terms of supervised release.
On the extant unlawful reentry charge, Aguirre-Cordero’s presentence
report calculated a base offense level of 8. U.S.S.G. § 2L1.2(a). His offense
level was then increased by 12 levels due to his previous deportation after
conviction of a drug trafficking felony, § 2L1.2(b)(1)(B), and reduced by 3 levels
for acceptance of responsibility upon motion of the government, § 3E1.1(b),
resulting in a total offense level of 17. Based on his criminal history category of
VI, the resulting advisory United States Sentencing Guidelines (“Guidelines”)
range was 51 to 63 months’ imprisonment. At sentencing, the government
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recommended that Aguirre-Cordero’s sentence not exceed the bottom of the
applicable Guidelines range. The district court accepted the government’s
recommendation and sentenced Aguirre-Cordero to 51 months’ imprisonment
followed by 3 years’ supervised release.
Aguirre-Cordero’s Colorado state conviction, the more serious of his
supervised release violations, 2 qualifies as a Grade B violation under the
Guidelines. § 7B1.1(a)(2). Combined with his criminal history category of I
when originally sentenced in the New Mexico case, the Guidelines range for his
release violations in that case was 4 to 10 months’ imprisonment. § 7B1.4(a). In
the prior unlawful reentry case, Aguirre-Cordero had a criminal history category
of IV when originally sentenced, resulting in a Guidelines range of 12 to 18
months’ imprisonment for the violations. Id. The district court revoked Aguirre-
Cordero’s release in both cases and sentenced him to 10 months’ and 18 months’
imprisonment respectively. The court ordered these sentences to be served
concurrently with each other but consecutively to the 51-month sentence for the
unlawful reentry charge. Aguirre-Cordero now appeals each sentence. 3
2
The sentencing range for a revocation of supervised release resulting from
more than one violation is calculated using the most serious of the violations. See
§ 7B1.1(b).
3
In appeal No. 07-1299, he appeals the revocation of his supervised release
in the New Mexico case. In No. 07-1300, he appeals the revocation of his release
in the prior unlawful reentry case. And in No. 07-1301, he appeals the sentence
for his most recent unlawful reentry.
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II
If an attorney conscientiously examines a case and determines that any
appeal would be wholly frivolous, counsel may “so advise the court and request
permission to withdraw.” Anders, 386 U.S. at 744. Counsel must submit a brief
to both the appellate court and the client, pointing to anything in the record that
could potentially present an appealable issue. The client may then choose to offer
argument to the court. If, upon complete examination of the record, the court
determines that the appeal is frivolous, it may grant counsel’s request to
withdraw. Id. Acting pursuant to Anders, counsel in the present case provided
Aguirre-Cordero with a copy of the appellate brief, and Aguirre-Cordero has
declined the opportunity to file a pro se brief in response.
Counsel’s brief raises only three arguably appealable issues: (1) whether
the district court complied with Rule 11 of the Federal Rules of Criminal
Procedure when accepting Aguirre-Cordero’s guilty plea; (2) whether the district
court imposed reasonable sentences; and (3) whether the district court abused its
discretion by imposing consecutive sentences. Upon review of the record, we
conclude that there is no nonfrivolous basis, whether raised or unraised by
counsel, for challenging the sentences.
A
Our independent review of the record reveals that the district court
complied with Federal Rule of Criminal Procedure 11. Rule 11 requires that,
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prior to accepting a defendant’s guilty plea, “the court must address the defendant
personally in open court . . . . [T]he court must inform the defendant of, and
determine that the defendant understands,” certain rights and matters relating to
his likely punishment, including the right to plead not guilty, the right to a jury
trial, the right to counsel, and the right to confront adverse witnesses. Fed. R.
Crim. P. 11(b)(1). In addition, the district court must determine whether the plea
is voluntary, Fed. R. Crim. P. 11(b)(2), and whether a factual basis exists to
support it, Fed. R. Crim. P. 11(b)(3). The transcript of the Aguirre-Cordero’s
plea colloquy demonstrates that the district court faithfully applied Rule 11.
Through a translator, the district court explained the rights Aguirre-Cordero
waived by pleading guilty, described the law that would govern his punishment,
ensured the plea was voluntary, and probed the facts underlying the plea.
Accordingly, the district court committed no error with respect to Rule 11.
B
The record also shows that Aguirre-Cordero received reasonable sentences.
We review Aguirre-Cordero’s sentence on the unlawful reentry charge for
reasonableness, deferring to the district court’s sentencing determination under an
abuse of discretion standard. United States v. A.B., 529 F.3d 1275, 1277 (10th
Cir. 2008). “Our appellate review for reasonableness includes both a procedural
component, encompassing the method by which a sentence was calculated, as well
as a substantive component, which relates to the length of the resulting sentence.”
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United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008). A court commits
procedural error by, among other things, “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence—including
an explanation for any deviation from the Guidelines range.” Gall v. United
States, 128 S. Ct. 586, 597 (2007). A court commits substantive error if it
imposes an unreasonably long sentence in light of the statutory factors in §
3553(a). See A.B., 529 F.3d at 1278 (“‘In evaluating the substantive
reasonableness of a sentence, we ask whether the length of the sentence is
reasonable considering the statutory factors delineated in 18 U.S.C. § 3553(a).’”
(quoting United States v. Hamilton, 510 F.3d 1209, 1217-18 (10th Cir. 2007))).
On the unlawful reentry conviction, the court imposed a procedurally and
substantively reasonable sentence. The district court committed none of the
procedural errors identified in Gall. It properly calculated the Guidelines range,
acknowledged the Guidelines’ advisory status, and considered arguments of both
Aguirre-Cordero and the government before imposing a within-Guidelines
sentence. See United States v. Cereceres-Zavala, 499 F.3d 1211, 1217 (10th Cir.
2007) (“[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.”
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(quotation omitted)). In addition, we presume that sentences within the Guidelines
range are substantively reasonable, United States v. Kristl, 437 F.3d 1050, 1054
(10th Cir. 2006), and nothing in the record rebuts that presumption. To the
contrary, a sentence of 51 months’ imprisonment, the bottom of the suggested
Guidelines range, was substantively reasonable in light of the factors identified in
§ 3553(a).
We also review revocation sentences for procedural and substantive
reasonableness. A district court imposes a procedurally reasonable revocation
sentence when it properly considers the sentencing factors outlined in 18 U.S.C.
§ 3583(e), 4 and we apply a rebuttable presumption of substantive reasonableness
to within-Guidelines sentences, see Kristl, 437 F.3d at 1054. 5 Here, the district
court carefully explored the asserted bases for the alleged supervised release
violations, explained the applicable Guideline ranges associated with each
violation, and imposed sentences within those suggested ranges. The district
4
Section 3583(e) incorporates several of the sentencing factors in 18
U.S.C. § 3553(a). See United States v. Contreras-Martinez, 409 F.3d 1236, 1242
& n.3 (10th Cir. 2005).
5
We have not yet had occasion to explore “the exact contours of our
post-Booker standard of review” for the substantive reasonableness of revocation
sentences. United States v. Rodriguez-Quintanilla, 442 F.3d 1254, 1258 (10th
Cir. 2006); see also id. at 1256-58 (explaining that some cases apply an “abuse of
discretion” standard while others apply a “plainly unreasonable” standard). We
need not define those contours here, however, because Aguirre-Cordero’s
revocation sentences are reasonable under either an “abuse of discretion” or a
“plainly unreasonable” standard. See id. at 1258.
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court therefore committed no procedural error. See Cereceres-Zavala, 499 F.3d at
1217 (explaining that a district court need only provide a “general statement” of
reasons for imposing a within-Guidelines sentence). Moreover, nothing in the
record overcomes the presumption of substantive reasonableness applicable to
within-Guidelines sentences. Accordingly, the court committed no error in
revoking Aguirre-Cordero’s terms of supervised release and imposing sentences
of 10 and 18 months’ imprisonment.
C
Finally, the district court did not abuse its discretion by ordering
consecutive sentences. See Contreras-Martinez, 409 F.3d at 1241 (reviewing such
a decision for abuse of discretion). Although advisory, the Guidelines provide
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.” U.S.S.G. § 7B1.3(f). The district
court followed the Guidelines’ recommendation here and more than sufficiently
justified its decision. Accordingly, the district court acted well within its
discretion in imposing consecutive rather than concurrent sentences. See
Rodriguez-Quintanilla, 442 F.3d at 1258-59; Contreras-Martinez, 409 F.3d at
1241-42.
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III
For the foregoing reasons, we GRANT counsel’s motion to withdraw and
AFFIRM Aguirre-Cordero’s sentences.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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