United States v. Ortega-Saucedo

FILED
United States Court of Appeals
Tenth Circuit
July 16, 2012
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-3381
RICARDO ORTEGA-SAUCEDO, (D.C. No. 2:11-CR-20050-KHV-1)
(D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, McKAY and HOLMES, 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,
submitted without oral argument.
Defendant Ricardo Ortega-Saucedo (Ortega) pled guilty to one count of illegal
reentry of a deported alien after a prior conviction for an aggravated felony, in violation
*
This order and judgment is not binding precedent, except under the doctrines of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.
of 8 U.S.C. §§ 1326(a) and (b)(2), and was sentenced to a term of imprisonment of 71
months. On appeal, Ortega’s counsel has filed an Anders brief and a motion to withdraw
as counsel. See Anders v. California, 386 U.S. 738, 744 (1967). Ortega was provided
with a copy of the Anders brief, but has filed no response thereto. The government has
declined to file a brief. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we grant
counsel’s motion to withdraw and dismiss the appeal.
I
On July 1, 2011, Ortega was indicted by a federal grand jury on one count of
illegal reentry of a deported alien after a prior conviction for an aggravated felony, in
violation of 8 U.S.C. §§ 1326(a) and (b)(2). The indictment alleged that on June 23,
2011, Ortega, an alien, was found to be knowingly and unlawfully in the United States.
The indictment further alleged that Ortega had previously been convicted in Arizona state
court of aggravated assault/domestic violence, and in federal court of illegal reentry after
deportation. Lastly, the indictment alleged that Ortega had “been removed and deported
from the United States on or about June 29, 2006, and [again on] March 21, 2009.” ROA,
Vol. 1, at 6.
On August 9, 2011, Ortega pleaded guilty to the single count alleged in the
indictment. In accepting Ortega’s plea, the district court expressly found “that the plea of
guilty was made by the defendant freely, voluntarily, and because he . . . is guilty as
charged, and not out of ignorance, fear, inadvertence or coercion, and with full
understanding of its consequences.” Id. at 22.
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After Ortega entered his plea, a probation officer prepared and filed with the
district court a presentence investigation report (PSR). The PSR, employing the
November 1, 2011 edition of the United States Sentencing Commission’s Guidelines
Manual, calculated Ortega’s total offense level as 21 and his criminal-history category as
IV, resulting in an advisory guidelines range of imprisonment of 57 to 71 months.
Neither Ortega nor the government objected to the PSR’s findings and recommendations.
The district court conducted a sentencing hearing on December 13, 2011. Ortega’s
counsel asked the district court “not to go above the low end of the guidelines” range of
imprisonment. ROA, Vol. 2, at 15. The district court rejected that request, however, and
imposed a sentence of “71 months in custody,” to “be followed by two years of
supervised release.” Id. at 16. In doing so, the district court stated:
I do not think that a sentence at the low end of the guideline range would be
appropriate given your prior federal conviction for illegal reentry after
deportation, the crime of violence, and aggravated assault, and at least ten
prior encounters with the boarder [sic] patrol. But I do think a sentence in
the guideline range is appropriate. I don’t see anything in this case which
would take defendant’s circumstances out of the heartland of cases that are
usually addressed by these guidelines.
Id.Judgment was entered in the case on December 15, 2011. Ortega filed a notice of
appeal on December 21, 2011. His counsel has since filed with this court an Anders brief
and a motion to withdraw. Although Ortega was provided with a copy of the Anders
brief, he has filed no response to it.
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II
Under Anders, defense counsel may “request permission to withdraw where
counsel conscientiously examines a case and determines that any appeal would be wholly
frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). In such a
case, “counsel must submit a brief to the client and the appellate court indicating any
potential appealable issues based on the record.” Id. The client is then permitted to
submit arguments to the court in response. We are then obligated to conduct
independently “a full examination of all the proceeding[s] to decide whether the case is
wholly frivolous.” United States v. Snitz, 342 F.3d 1154, 1158 (10th Cir. 2003) (internal
quotations omitted).
Having conducted such an examination in this case, we agree with Ortega’s
counsel that the appeal is wholly frivolous. The record on appeal establishes that
Ortega’s guilty plea was knowing and voluntary, and neither Ortega nor his counsel assert
otherwise. Turning to the sentencing proceedings, neither Ortega nor the government
objected to the advisory guidelines range calculated by the PSR, which was adopted in
full by the district court. Further, our own review of the record indicates that the advisory
guidelines range was correctly calculated. As for the sentence imposed by the district
court, it was within the advisory guidelines range and was selected by the district court
after consideration of the factors outlined in 18 U.S.C. § 3553(a). Consequently, we
conclude that the sentence imposed was both procedurally and substantively reasonable.
See Gall v. United States, 552 U.S. 38, 51 (2007).
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Counsel’s motion to withdraw is GRANTED and the appeal is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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