United States v. Guardado-Cordova , 535 F. App'x 647 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
July 3, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 12-2211
v. (D.C. No. 2:12-CR-01054-BRB-1)
(D. New Mexico)
ISRAEL ANGEL GUARDADO-
CORDOVA,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, 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.
Defendant and appellant, Israel Angel Guardado-Cordova, seeks to appeal
his sentence following his plea of guilty to one count of illegally reentering the
*
This order and judgment is not binding precedent, except under the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.
United States, after being previously deported following a conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). His appointed
counsel, Assistant Federal Public Defender Andre C. Poissant, has filed an Anders
brief and has moved to withdraw as counsel. See Anders v. California, 386 U.S.
738 (1967). Mr. Guardado-Cordova has not filed any response to that brief and
the government has declined to file a brief. We therefore base our conclusion on
counsel’s brief and our own careful review of the record. For the reasons set
forth below, we agree with Mr. Poissant that the record in this case provides no
nonfrivolous basis for an appeal, and we therefore grant his motion to withdraw
and we dismiss this appeal.
The presentence report (“PSR”), prepared by the United States Probation
Office in anticipation of sentencing Mr. Guardado-Cordova, provides the
following basic facts relevant to this appeal: On March 13, 2012, United States
Border Patrol agents discovered thirteen sets of footprints on State Road 81, west
of the Antelope Wells, New Mexico, Port of Entry. After following the
footprints, the agents discovered thirteen individuals attempting to conceal
themselves in brush approximately forty miles north of the United States/Mexico
International border. One of the individuals discovered was Mr. Guardado-
Cordova. He admitted he was a citizen of El Salvador and he did not have the
proper documents to enter or remain in the United States. He was then arrested
and transported to the Border Patrol station for further processing.
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Immigration records revealed that Mr. Guardado-Cordova had been
convicted on July 1, 2005, of sexual assault, a second degree felony, in Arkansas.
He was sentenced to twenty-four months probation for that conviction and was
subsequently deported from the United States on November 4, 2005. Mr.
Guardado-Cordova indicated to authorities that he has a two-year-old daughter in
El Salvador who needs eye surgery. Because of financial difficulties, he cannot
afford the surgery and he came to the United States in search of work.
As indicated, Mr. Guardado-Cordova pled guilty to one count of violating 8
U.S.C. § 1326(a) and (b)(2). The PSR calculated an advisory sentencing range
under the United States Sentencing Commission, Guidelines Manual (“USSG”),
of forty-six to fifty-seven months, based on an offense level of twenty-one and a
criminal history category of III. The total offense level of twenty-one included a
sixteen-level increase pursuant to USSG §2L1.2(b)(1)(A)(ii) because Mr.
Guardado-Cordova had been deported previously following a conviction for a
felony crime of violence (in this case, the second degree felony sexual assault).
Mr. Guardado-Cordova filed a sentencing memorandum requesting a
“downward departure” from the advisory sentencing range, arguing that a
sentence of “twelve months and one day is sufficient, but not greater than
necessary to comply with the purposes of sentencing set forth in 18 U.S.C.
§ 3553(a), and takes into account the nature and circumstances of the offense and
the history and characteristics of the defendant.” Def.’s Sentencing Mem. at 1, R.
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Vol. 1 at 12. He argued that the sixteen-level enhancement was unreasonably
severe because it placed reentry offenses at the same level as far more serious
offenses, and he claimed that his current circumstances, including his family
situation and his daughter’s poor health, warranted a variance. The district court
rejected his arguments and sentenced him to the bottom of the advisory
sentencing range—i.e., forty-six months. Mr. Guardado-Cordova’s counsel filed
this appeal. As indicated, that counsel has now moved to withdraw as counsel
pursuant to Anders.
The Supreme Court decision in Anders authorizes a defendant’s lawyer to
seek permission to withdraw from an appeal if, “after conscientious examination,”
the lawyer finds the appeal “wholly frivolous.” Anders, 386 U.S. at 744.
Invoking Anders requires the lawyer to “submit a brief to the client and the
appellate court indicating any potential appealable issues based on the record,”
and the client has an opportunity to respond to his attorney’s arguments. United
States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citing Anders, 386 U.S. at
744). In evaluating the attorney’s request to withdraw, we are required to
“conduct a full examination to determine whether the defendant’s claims are
wholly frivolous.” Id. If they are, we may grant counsel’s motion to withdraw
and dismiss the appeal. Id.
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Mr. Guardado-Cordova’s counsel identifies as the only “potential”
appealable issue the question of “whether Mr. Guardado-Cordova’s 46-month
sentence was substantively unreasonable.” Appellant’s Br. at 8.
We review sentences for substantive and procedural reasonableness under
an abuse of discretion standard. United States v. Lopez-Macias, 661 F.3d 485,
488-89 (10th Cir. 2011). Procedural reasonableness involves an assessment of
“the method by which a sentence is calculated.” Id. There is no basis in the
record in this case for challenging the procedural reasonableness of this sentence.
“[S]ubstantive reasonableness addresses whether the length of the sentence
is reasonable given all the circumstances of the case in light of the factors set
forth in 18 U.S.C. § 3553(a).” United States v. Damato, 672 F.3d 832, 838 (10th
Cir. 2012) (internal quotation marks omitted). “We review substantive
reasonableness claims for abuse of discretion, id. , “afford[ing] substantial
deference to [the] district court[].” United States v. Smart, 518 F.3d 800, 806
(10th Cir. 2008). A sentence within the properly-calculated Guidelines range is
presumed on appeal to be reasonable. United States v. Alvarez-Bernabe, 626 F.3d
1161, 1167 (10th Cir. 2010).
At sentencing, Mr. Guardado-Cordova argued for a sentence below the
advisory Guideline range on the ground that the sixteen-level enhancement as
applied to his offense was unreasonably harsh. He argued that a sentence of one
year and a day was appropriate, given all the circumstances of his offense. Mr.
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Guardado-Cordova pointed out that illegal reentry is non-violent, and that the
sixteen-level enhancement yields sentences far longer than sentences for more
violent and more serious offenses. To the extent Mr. Guardado-Cordova is
attempting to raise a policy objection to the sixteen-level increase contained in
the Guidelines, we have explicitly rejected that argument. See United States v.
Alvarez-Bernabe, 626 F.3d 1161 (10th Cir. 2010).
He also argued that his “personal and family circumstances supported a
variance.” Appellant’s Br. at 10. In particular, his two-year-old daughter needs
medical care, and his sole reason for returning to the United States was to obtain
employment so that he could provide for her care. Our court has acknowledged
that the “extensiveness of ‘family and cultural ties,’ however the factor is
characterized, will still be part of tailoring an appropriate sentence[,] . . . [but] it
is also clear in assessing the reasonableness of a sentence that a particular
defendant’s cultural ties must be weighed against other [§ 3553] factors.” United
States v. Galarza-Payan, 441 F.3d 885, 889 (10th Cir. 2006). The district court
clearly weighed Mr. Guardado-Cordova’s personal situation against the other
relevant sentence factors in arriving at the within-Guidelines sentence imposed.
This argument therefore provides no nonfrivolous basis for an appeal.
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In short, we perceive no meritorious grounds for an appeal. We therefore
GRANT counsel’s request to withdraw, and we DISMISS this appeal.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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