United States v. Lopez-Garcia , 354 F. App'x 326 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
November 27, 2009
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
No. 09-1199
v. (D.C. No. 1:08-CR-00499-PAB-1)
(D. Colo.)
GERARDO LOPEZ-GARCIA,
Defendant–Appellant.
ORDER AND JUDGMENT*
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
Gerardo Lopez-Garcia appeals his sentence of forty-six months’ imprisonment and
three years’ supervised release for re-entering the United States following deportation in
violation of 8 U.S.C. § 1326. In a brief filed pursuant to Anders v. California, 386 U.S.
738 (1967), Lopez-Garcia’s counsel states that there are no non-frivolous arguments to
present on appeal and moves for leave to withdraw. Exercising jurisdiction under 18
* 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
U.S.C. § 3742(a) and 28 U.S.C. § 1291, we grant counsel’s motion to withdraw and
dismiss the appeal.
I
While detained in a Colorado state detention center, Lopez-Garcia informed prison
officials that he was not born in the United States. After being advised of his Miranda
rights in Spanish, Lopez-Garcia consented to an interview with an immigration
enforcement agent. Lopez-Garcia admitted that he was a citizen of Mexico, that he had
been deported from the United States after serving a sentence for drug possession, and
that he subsequently illegally re-entered the United States.
Lopez-Garcia then entered into a plea bargain in which he stipulated to the above-
noted facts and agreed to plead guilty to one count of violating 8 U.S.C. § 1326. In
return, the government agreed to recommend a sentence at the low end of the applicable
United States Sentencing Guidelines range and to propose a three-level reduction in
Lopez-Garcia’s offense level for acceptance of responsibility. The plea agreement
estimated that Lopez-Garcia’s Guidelines range would be fifty-seven to seventy-one
months’ imprisonment. The agreement noted, however, that the court could impose a
sentence up to the statutory maximum of twenty years’ imprisonment and/or a fine of up
to $250,000.
Lopez-Garcia’s probation officer prepared a Pre-Sentence Investigation Report
(“PSR”) in advance of a sentencing hearing, which recommended a Guidelines range of
forty-six to fifty-seven months’ imprisonment and up to three years’ supervised release.
-2-
At his sentencing hearing, Lopez-Garcia did not dispute any portion of the PSR. In
accordance with the plea bargain, the government recommended forty-six months’
imprisonment, the bottom of the advisory Guidelines range. Lopez-Garcia requested the
same. The court adopted the factual stipulations of the plea agreement and the
recommendation of the parties as to the sentence. After the court entered Lopez-Garcia’s
sentence, he timely filed a Notice of Appeal.
II
Under Anders, if an attorney examines a case and determines that any appeal
would be “wholly frivolous,” counsel may “so advise the court and request permission to
withdraw.” 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. Id. The client may then choose to offer argument to the court. Id. If, upon close
examination of the record, the court determines that the appeal is frivolous, it may grant
counsel’s request to withdraw and dismiss the appeal. Id. In this case, counsel served
Lopez-Garcia with a copy of the appellate brief, and Lopez-Garcia did not file a response.
The only arguably appealable issue we discern in the record is the reasonableness
of Lopez-Garcia’s sentence. We review a district court’s sentencing determination for
abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). A sentencing court
abuses its discretion if it imposes a sentence that is procedurally or substantively
unreasonable in light of the factors found in 18 U.S.C. § 3553(a). United States v.
Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007). Examples of procedural
-3-
unreasonableness include “failing to calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to consider the § 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, 552 U.S. at 51. Where, as here, a defendant does not contemporaneously object to
the sentencing procedure used, we review only for plain error. United States v. Romero,
491 F.3d 1173, 1176-78 (10th Cir. 2007). In the absence of significant procedural error,
we determine the substantive reasonableness by looking to the totality of the
circumstances. Gall, 552 U.S. at 51. “If the district court correctly calculates the
Guidelines range based upon the facts and imposes [a] sentence within that range, the
sentence is entitled to a presumption of reasonableness.” United States v. Sutton, 520
F.3d 1259, 1262 (10th Cir. 2008) (citing Rita v. United States, 551 U.S. 338, 346 (2007)).
The district court did not commit plain error in arriving at Lopez-Garcia’s
sentence. The court correctly calculated his Guidelines range, stated it viewed the
Guidelines as advisory, considered the § 3553(a) factors, and explained the basis for the
sentence imposed. Moreover, Lopez-Garcia does not contend that the court based its
determination on erroneous facts, and our independent review of the record shows no
clear error.
Lopez-Garcia also points to no facts that would overcome the presumption that his
sentence is substantively reasonable. In fact, he received a sentence lower than that
estimated by the plea agreement. The court entered a sentence at the bottom of the
-4-
correctly calculated Guidelines range. Any argument that his sentence was unreasonable
is frivolous.
III
For the foregoing reasons, we GRANT defense counsel’s motion to withdraw and
DISMISS the appeal.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
-5-