United States v. Jesus Talavera-Gonzalez ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 13, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-2006
v. (D.C. No. 2:07-CR-00800-MV-1)
(D. N.M.)
JESUS TALAVERA-GONZALEZ,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, ANDERSON, and BRORBY, Circuit Judges.
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.
Appellant Jesus Talavera-Gonzalez pled guilty to one count of unlawful re-
*
This order and judgment is not binding precedent except under the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.
entry of a deported alien subsequent to a felony drug conviction in violation of 8
U.S.C. § 1326(a) and (b)(2). The district court sentenced Mr. Talavera-Gonzalez
to twenty-four months imprisonment. Although Mr. Talavera-Gonzalez appeals
his conviction and sentence, his attorney has filed an Anders brief and a motion to
withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967). For
the reasons set forth hereafter, we grant counsel’s motion to withdraw and dismiss
this appeal. Id.I. Background
In pleading guilty, Mr. Talavera-Gonzalez submitted a statement in advance
of his guilty plea in which he admitted knowingly re-entering the country without
permission. At the plea hearing, the district court conducted a Rule 11 colloquy.
See Fed. R. Cr. P. 11. During the hearing, Mr. Talavera-Gonzalez indicated, in
part, that he: (1) understood the charges against him and acknowledged his guilty
plea was voluntary and not coerced or based on any promises; (2) indicated he
discussed the offense charged and consequences of pleading guilty with his
counsel, with whom he was satisfied; (3) understood the rights he was giving up
by pleading guilty and discussed with his attorney the maximum sentence of
twenty years and other possible punishments for the offense charged; (4)
acknowledged he entered the country illegally after prior deportation; and (5)
confirmed his wish to plead guilty to the offense charged. In accepting his guilty
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plea, the district court found Mr. Talavera-Gonzalez’s guilty plea was knowing
and voluntary and that he was fully competent and capable of entering an
informed plea. 1
After Mr. Talavera-Gonzalez pled guilty, a probation officer prepared a
presentence report calculating his sentence under the applicable United States
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). The probation officer
calculated the base offense level at eight under U.S.S.G. § 2L1.2(a) and added a
sixteen-level adjustment under § 2L1.2(b)(1)(A) because Mr. Talavera-Gonzalez
had been deported subsequent to having been convicted for a drug trafficking
offense. In addition, based on his acceptance of responsibility for the offense of
conviction, the probation officer included a three-level reduction, for a total
offense level of twenty-one. A total offense level of twenty-one, together with a
criminal history category of IV, resulted in a Guidelines imprisonment range of
fifty-seven to seventy-one months. The probation officer then recommended a
downward departure based on a perceived over-representation of Mr. Talavera-
Gonzalez’s criminal history, suggesting that a more representative criminal
history category was III, which, together with a total offense level of twenty-one,
resulted in a Guidelines range of forty-six to fifty-seven months imprisonment.
1
Counsel for Mr. Talavera-Gonzalez points out that while Mr. Talavera-
Gonzalez waived many of his constitutional rights, he did not waive his right to
appeal.
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Neither party filed objections to the presentence report. However, Mr.
Talavera-Gonzalez filed a request for a variance for a twenty-four-month sentence
on grounds his drug trafficking offense used to enhance his offense level had
occurred over fourteen years prior. The probation officer agreed a variance may
be warranted, acknowledging the drug trafficking offense occurred almost fifteen
years ago and noting that from 1997 until 2006, Mr. Talavera-Gonzalez refrained
from engaging in any criminal activity. While the government later argued it
intended to file a formal objection to the requested variance, no such objection
was received by the court, probation officer, or opposing counsel prior to the
sentencing hearing.
At the sentencing hearing, the district court concluded a criminal history
category of III more properly represented the seriousness of Mr. Talavera-
Gonzalez’s criminal history and unlikelihood of recidivism, resulting in a
Guidelines range of forty-six to fifty-seven months imprisonment. It also
discussed Mr. Talavera-Gonzalez’s request for a variance and the sentencing
factors in 18 U.S.C. § 3553(a). In applying those factors to all of the applicable
facts involved in Mr. Talavera-Gonzalez’s case, the district court determined the
Guidelines range was greater than necessary to satisfy the purposes announced in
18 U.S.C. § 3553(a). It then granted the request for a variance by sentencing Mr.
Talavera-Gonzalez to twenty-four months imprisonment.
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Following Mr. Talavera-Gonzalez’s timely notice of appeal for the purpose
of challenging the length of his sentence, his appointed counsel filed an Anders
appeal brief explaining that, after a thorough examination of the case, including a
review of the record and all possible avenues for appeal, counsel determined the
appeal is wholly frivolous and without merit. See Anders, 386 U.S. at 744. In
support, counsel pointed out: (1) Mr. Talavera-Gonzalez’s guilty plea was
entered into voluntarily and intelligently, and he understood and appreciated the
full extent of the punishments and possible sentence for his offense; and (2) his
twenty-four-month sentence is well below the applicable Guidelines range.
Pursuant to Anders, this court gave Mr. Talavera-Gonzalez an opportunity to
respond to his counsel’s Anders brief. See 386 U.S. at 744. To date, Mr.
Talavera-Gonzalez has filed no response. In turn, the government has filed a
notice of its intention not to file an answer brief to the Anders brief filed by Mr.
Talavera-Gonzalez’s counsel in this appeal.
II. Discussion
As required by Anders, we have conducted a full examination of the record
before us. See id. The record establishes Mr. Talavera-Gonzalez’s guilty plea
was voluntarily, knowingly, and intelligently entered, he was advised of and
understood the possible sentence and other punishments he might face in
conjunction with his guilty plea to the offense charged, and that sufficient
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evidence supported his conviction. As to his sentence, we review it for
reasonableness, as guided by the factors in 18 U.S.C. § 3553(a). See United
States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). Having made
such a review, we find no nonfrivolous basis for challenging the sentence
imposed. The district court applied the probation officer’s recommendation for a
downward departure as well as granted Mr. Talavera-Gonzalez’s request for a
variance in conjunction with the sentencing factors in § 3553(a). It then
sentenced him to twenty-four months imprisonment, which is well below the
advisory Guidelines range of forty-six to fifty-seven months imprisonment. Mr.
Talavera-Gonzalez has not provided any nonfrivolous reason warranting a lower
sentence.
III. Conclusion
For these reasons, no meritorious appellate issue exists. Accordingly, we
grant counsel’s motion to withdraw and DISMISS Mr. Talavera-Gonzalez’s
appeal.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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