United States v. Gonzalez-Hernandez

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 10, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 06-3267
v. D. Kansas
JULIAN GO NZA LEZ-HER NA ND EZ, (D.C. No. 06-CR-10009-01)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and O’BRIEN, 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.
Julian Gonzalez-Hernandez, a citizen of M exico, pled guilty to one count of
illegal re-entry into the United States after a conviction of an aggravated felony in
*
This order and judgment is not binding precedent except under the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.
violation of 8 U.S.C. § 1326(a). The court sentenced him to 86 months
imprisonment, a sentence within the guideline range. Gonzalez-Hernandez timely
appealed. His counsel filed an Anders brief and moved to withdraw stating she
could find no non-frivolous bases for appeal despite a diligent search. See Anders
v. California, 386 U.S. 738 (1967). 1 Gonzalez-Hernandez filed a pro se
supplemental brief. The government did not submit a brief. Neither Gonzalez-
Hernandez nor his counsel raise any non-frivolous issues and our review of the
record reveals none. W e grant counsel's motion to withdraw and dismiss the
appeal.
I. BACKGROUND
On January 11, 2006, Gonzalez-Hernandez was charged with one count of
illegal re-entry subsequent to a conviction of an aggravated felony, one count of
felon in possession of a firearm, and one count of being an alien not law fully in
the United States in possession of a firearm. Gonzalez-Hernandez pled guilty to
the count of illegal re-entry subsequent to a conviction for an aggravated felony.
1
Anders holds “if counsel finds [his client’s] case to be wholly frivolous,
after a conscientious examination of it, he should so advise the court and request
permission to w ithdraw .” 386 U.S. at 744. Counsel must submit to both the court
and his client a “brief referring to anything in the record that might arguably
support the appeal.” Id. The client may then “raise any points he chooses.” Id.Thereafter, the court must completely examine all the proceedings to determine
the frivolity of the appeal. “If it so finds it may grant counsel’s request to
withdraw and dismiss the appeal . . . . [I]f it finds any of the legal points arguable
on their merits (and therefore not frivolous) it must, prior to decision, afford the
indigent the assistance of counsel to argue the appeal.” Id.-2-
The pre-sentence report (PSR) identified no grounds for a downward departure
and recommended against departure. Prior to sentencing, Gonzalez-Hernandez
objected, claiming his criminal history category of VI over-represented the
seriousness of his criminal history and the likelihood he would commit other
offenses.
At sentencing, counsel for Gonzalez-Hernandez emphasized that he had but
one felony conviction and eight of his eleven criminal history points were the
result of four DUI convictions occurring before 1999. His counsel also informed
the court of Gonzalez-Hernandez’s difficult childhood, leading to his problems
with alcohol, and emphasized his participation in an alcohol rehabilitation
program following the D UI convictions. Counsel requested the district court
exercise its discretion to depart downward and impose a 46 month sentence. The
district court noted the arguments and objection to the PSR, but ultimately denied
the request for downward departure, stating:
Given the defendant’s repeated drunken driving convictions and his
numerous incidents of violating probation, as well as his
methamphetamine conviction of 2002, the Court cannot say that
category 6 substantially overstates the seriousness of the history or
the likelihood that he . . . will commit future crimes.
....
The C ourt has considered the factors set forth in 18 USC § 3553A,
including the advisory guideline range. The Court intends to impose
a sentence of 86 months, which represents a sentence at the midpoint
of the advisory guideline range. This sentence serves the purpose of
sentencing by incapacitating and punishing the defendant for that
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period of time.
(R. Vol. III at 9-10.) This timely appeal followed.
II. DISCUSSION
Following the notice of appeal, Gonzalez-Hernandez’s attorney filed an
Anders brief. See 386 U.S. at 741-42. Counsel explained she “examined
carefully the facts and matters contained in the record on appeal and has
researched the law in connection therewith, and has concluded that the appeal
presents no legally non-frivolous questions.” (Anders Br. at 8.) Nevertheless,
Gonzalez-Hernandez filed a pro se brief in which he contends his sentence is
unreasonable in violation of United States v. Booker, 543 U.S. 220 (2005). He
maintains the district court failed to consider his alcohol rehabilitation, the
vicissitudes of his childhood, and the dependency of his ill and impoverished
family as compelling bases for a lower sentence. 2
“[W ]hile w e do not have jurisdiction to review the district court’s
discretionary decision to deny a downward departure, we have jurisdiction
post-Booker to review the sentence imposed for reasonableness.” United States v.
2
Gonzalez-Hernandez’s arguments regarding his family ties and his
family’s medical condition arise for the first time in his pro se brief. Thus, these
factual arguments will not be considered. United States v. Alcaraz-Arellano, 441
F.3d 1252, 1260 (10th Cir. 2006) (“Ordinarily we do not address arguments not
made below. That practice is particularly appropriate here, because his failure to
raise the argument below deprives us of any fact finding on the matter by the
district court.” (citation omitted)).
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Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006). In so doing, we apply “a
rebuttable presumption of reasonableness [to] sentences imposed within the
advisory guideline range.” Id. (citing United States v. Kristl, 437 F.3d 1050,
1055 (10th Cir.2006)). Gonzalez-Hernandez fails to rebut the presumption of
reasonableness.
The district court was fully advised of the timing and nature of Gonzalez-
Hernandez’s prior convictions, including the fact that the majority of his criminal
history points were the result of dated DUI convictions. Although the district
court did not refer to his alcohol rehabilitation program, it knew he had been
granted probation after each DUI conviction and probation was revoked; twice for
failure to comply with the recommendations of the drug and alcohol evaluations
court and failure to pay assessments and once for failure to report to his
probations officer. After completing a term of incarceration for
methamphetamine possession with intent to sell (a felony), 3 he was deported to
M exico on December 1, 2004. He re-entered the United States approximately
three months later. Gonzalez-Hernandez informed the court he was addicted to
methamphetamine. To what degree the court took his admitted addiction into
account is not clear, but obviously prior substance abuse counseling was of little
consequence since he continued to drive while intoxicated, endangering the
3
Gonzalez-Hernandez was given probation on this offense as well, but that
opportunity to demonstrate reformation was also lost. This time for a revocation
due to a misdemeanor conviction.
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public. The argument is one that may be “passed over in silence.” See U.S. v.
Traxler, 477 F.3d 1243, 1249 (10th Cir. 2007) (citations omitted).
W e have fully examined the proceedings as required by Anders. Because
this case presents no legal points arguable on their merits, it is frivolous. 4
C ounsel's motion to w ithdraw is GRANTED and the appeal is DISM ISSED.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
4
See Anders, 386 U.S. at 744.
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