United States v. Ibarra-Guzman

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 26, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
No. 06-2167
v. (D.Ct. No. CR -06-377 JP)
(D . N.M .)
A D RIA N IB AR RA -G U ZM A N ,
Defendant-Appellant.
____________________________
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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 Adrian Ibarra-Guzman pled guilty to one count of reentry of a
*
This order and judgment is not binding precedent except under the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.
deported alien previously convicted of a felony in violation of 8 U.S.C.
§ 1326(a)(1) and (2) and (b)(1). The district court sentenced M r. Ibarra-Guzman
to twenty-four months imprisonment. W hile M r. Ibarra-Guzman appeals the
district court’s sentence, his attorney has filed an Anders brief and 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 w ithdraw and dismiss
this appeal.
M r. Ibarra-Guzman pled guilty to a one-count indictment for unlawful
reentry of a deported alien previously convicted of a felony, in violation of 8
U.S.C. § 1326(a)(1) and (2) and (b)(1). The record further establishes that in
2004, in case number CR04-0241-01VRW in the United States District Court for
the Northern District of California, M r. Ibarra-Guzman w as convicted of the
felony crime of illegal reentry following deportation and sentenced to fifteen
months custody, after which he w as again deported to M exico. He was also
convicted in August 1996, in case number SC38516A in the San M ateo County
Superior Court, of the felony crime of being an accessory to reckless discharge of
a firearm.
After M r. Ibarra-Guzman pled guilty to the indictment for unlawful reentry
of a deported alien previously convicted of a felony, the probation officer
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prepared a presentence report calculating M r. Ibarra-Guzman’s sentence under the
applicable United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”).
The presentence report set his base offense level at eight pursuant to U.S.S.G.
§ 2L1.2(a), increased his base level four levels pursuant to U.S.S.G.
§ 2L1.2(b)(1)(D) because he had been deported following conviction of a felony,
and reduced his offense level by two for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1, resulting in a total offense level of ten. The presentence report
also set M r. Ibarra-Guzman’s criminal history level at VI, which, together with an
offense level of ten, resulted in a Guidelines sentencing range of twenty-four to
thirty months imprisonment.
M r. Ibarra-Guzman did not file any objections to the presentence report,
either prior to or at his sentencing hearing. In addition, at the sentencing hearing,
M r. Ibarra-Guzman told the district court all of the statements of fact in the
presentence report had been read to him in Spanish and were true and correct.
After the district court explicitly stated it had considered the presentence report
factual findings, the G uidelines, and the factors set forth in 18 U.S.C. § 3553(a),
it sentenced M r. Ibarra-Guzman at the low end of the Guidelines range to twenty-
four months imprisonment.
After M r. Ibarra-Guzman filed a timely notice of appeal, his appointed
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counsel filed an Anders appeal brief, explaining M r. Ibarra-Guzman wished to
challenge only the length of his sentence and not his guilty plea. However,
counsel further states a review of the record and relevant case law reveal the
appeal to be wholly frivolous and, for that reason, counsel moves for an order
permitting withdrawal as counsel. See Anders, 386 U.S. at 744. In support of his
position the appeal is frivolous, M r. Ibarra-Guzman’s counsel points out M r.
Ibarra-G uzman’s offense level and criminal history category were correctly
calculated, the district court sentenced M r. Ibarra-Guzman within the applicable
Guidelines range, and his sentence was not otherwise imposed in violation of the
law under 18 U.S.C. § 3742(a). Pursuant to Anders, this court gave M r. Ibarra-
Guzman an opportunity to respond to his counsel’s Anders brief. Id. M r. Ibarra-
Guzman failed to file a response.
As required by Anders, we have conducted a full examination of the record
before us. See 386 U.S. at 744. W hen a defendant’s “claim is merely that the
sentence is unreasonably long, we do not require the defendant to object in order
to preserve the issue.” United States v. Torres-Duenas, 461 F.3d 1178, 1183
(10th Cir. 2006), petition for cert. filed (Nov. 22, 2006) (No. 06-7990). Instead,
we review for reasonableness the sentence’s length, as guided by the factors in 18
U.S.C. § 3553(a). See id. Having made such a review, we find no nonfrivolous
basis for challenging the sentence imposed. The district court in this case
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explicitly considered the factors in § 3553(a), and a presumption of
reasonableness attaches to a sentence which is within the correctly-calculated
Guidelines range, which M r. Ibarra-G uzman has not rebutted. See United States
v. Kristl, 437 F.3d 1050, 1053-55 (10th Cir. 2006) (per curiam). For these
reasons, no meritorious appellate issue exists.
Accordingly, we GR A N T counsel’s motion to withdraw and DISM ISS M r.
Ibarra-G uzman’s appeal.
Entered by the C ourt:
W ADE BRO RBY
United States Circuit Judge
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