United States v. Rivas-Gonzalez , 270 F. App'x 742 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
March 25, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 07-2203
v. District of New Mexico
ADON NAVOR RIVAS-GONZALEZ, (D.C. No. 07-CR-1072-JB)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and McCONNELL, Circuit Judges.
On May 29, 2007, Adon Navor Rivas-Gonzalez, a native and citizen of
Mexico, pleaded guilty to one count of reentry of a removed alien having
previously been convicted of an aggravated felony, in violation of 8 U.S.C. §§
1326(a) and (b)(2). He was sentenced to serve a term of 27 months’
imprisonment, the bottom of his advisory range under the United States
*
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). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
Sentencing Guidelines, and timely appealed. His counsel, James P. Baiamonte, of
Albuquerque, New Mexico, filed an Anders brief and moved to withdraw as
counsel. See Anders v. California, 386 U.S. 738 (1967).
I.
Under Anders, a court-appointed defense counsel who believes that an
appeal would be “wholly frivolous” may withdraw only upon submission of a
brief to the client and the court indicating “anything in the record that might
arguably support the appeal.” Id. at 744. The defendant “may then choose to
submit arguments to the court.” United States v. Calderon, 428 F.3d 928, 930
(10th Cir. 2005). If we conclude, after a full examination of the record before us,
that the appeal is frivolous, we will grant the motion to withdraw and dismiss the
appeal. Id.; Anders, 386 U.S. at 744. Mr. Rivas-Gonzalez has submitted no brief
of his own, and the government declined to submit a reply brief.
Counsel’s Anders brief mentions one possible basis for appeal, namely, that
although Mr. Rivas-Gonzalez received the minimum Guidelines sentence, the
Guidelines are now advisory and he “could argue that his sentence was
unreasonable and that the district judge did not adequately consider the statutory
concerns other than the advisory guidelines expressed in 18 U.S.C. § 3553(a).”
Aplt’s Br. 6–7.
In reality, this sets out two potential claims. First, that the sentence was
procedurally unreasonable, in that the district court failed “‘to consider the §
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3553(a) factors.’” United States v. Verdin-Garcia, 516 F.3d 884, 895,
(10th Cir. 2008) (quoting Gall v. United States, 128 S. Ct. 586, 597 (2007)).
Second, that the sentence was substantively unreasonable “given all the
circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).”
United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir. 2007).
The transcript of the sentencing hearing and the district court’s
memorandum opinion on sentencing reveal that the court fully considered the
statutory factors. It expressly discussed most of them, including “the nature and
circumstances of the offense and the history and characteristics of the defendant,”
18 U.S.C. § 3553(a)(1), even though procedural reasonableness does not require
that the district court “march through § 3553(a)’s sentencing factors” when
rendering a sentence within the Guidelines range. United States v. Rines, 419
F.3d 1104, 1107 (10th Cir. 2005).
Considered substantively, within-Guidelines sentences are presumed to be
reasonable, United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006), and our
substantive review of a sentence is for abuse of discretion, United States v. Angel-
Guzman, 506 F.3d 1007, 1014–15 (10th Cir. 2007). Here, as the district court
recognized, nothing in Mr. Rivas-Gonzalez’s case suggests that a within-
Guidelines sentence would be unreasonable. The court acknowledged that it had
authority to vary from the Guidelines, and took account of Mr. Rivas-Gonzalez’s
proffered reasons for a downward variance: that he had come to this country only
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for economic betterment and to support his family, that he has been employed,
that his prior felony conviction for drug trafficking did not involve violence or
firearms, and that he had been released from prison on that charge having served
only eight months of a one-year sentence. On this basis, we see no plausible
grounds for arguing that imposing a bottom-of-the-range 27-month sentence was
beyond the district court’s discretion.
II.
We have carefully reviewed the record, and are satisfied that there are no
non-frivolous issues for appeal. We therefore GRANT Mr. Baiamonte’s motion
to withdraw and DISMISS the appeal. It is ORDERED, that the docket of this
case shall be amended to reflect Mr. Rivas-Gonzalez’s correct middle name as
“Navor” instead of “Navoz.”
Entered for the Court,
Michael W. McConnell
Circuit Judge
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