United States v. Villalobos-Lopez

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 12, 2011
TENTH CIRCUIT
Elisabeth A. Shumaker
__________________________ Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 10-1466
v. (D.Ct. No. 1:10-CR-00175-WYD-1)
(D. Colo.)
HUGO VILLALOBOS-LOPEZ,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
Appellant Hugo Villalobos-Lopez pled guilty to one count of unlawful re-
entry of a previously removed alien subsequent to a felony conviction 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This order and judgment is not binding precedent except under the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). The district court sentenced him at the low end
of the United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) range to
fifty-seven months imprisonment. Although Mr. Villalobos-Lopez appeals his
conviction and sentence, his attorney has filed an Anders brief and a motion for
permission 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
withdraw and dismiss this appeal. Id.
I. Background
On June 28, 2010, Mr. Villalobos-Lopez pled guilty to unlawful reentry in
violation of 8 U.S.C. § 1326(a) and (b)(2). In pleading guilty, Mr. Villalobos-
Lopez acknowledged, in part, he: (1) is an illegal alien born in Mexico who was
previously deported from the United States following an aggravated felony
conviction for attempted sexual assault on a child and reentered without the legal
consent of the United States; (2) understood his Constitutional rights and the
rights he was waiving by not going to trial; (3) knew the maximum possible
penalty for his crime was twenty years; (4) was aware the court would consider
the advisory Guidelines in determining his sentence; and (5) acknowledged he
entered his plea freely and voluntarily.
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Mr. Villalobos-Lopez also stated he understood that by pleading guilty, he
was agreeing to forgo his right to appellate review on the question of his guilt,
but he could still seek appellate review of the sentence imposed, except for any
policy disagreement with the Guidelines for illegal reentry or because no fast-
track program exists in the District of Colorado. In addition, he acknowledged
his criminal record included convictions for driving under the influence, first
degree criminal trespass, third degree assault, and attempted sexual assault on a
child.
Because Mr. Villalobos-Lopez was born in Mexico and cannot speak
English, his plea documents, including his plea agreement and statement in
advance of his guilty plea, were presented in both English and Spanish and a
Spanish interpreter was provided during his plea hearing. At the plea hearing, the
district court accepted his guilty plea.
Thereafter, a probation officer prepared a presentence report calculating his
sentence under the applicable Guidelines, which resulted in a sentencing range of
fifty-seven to seventy-one months imprisonment. 1 At sentencing, the district
1
Neither counsel nor Mr. Villalobos-Lopez submitted a copy of the
presentence report into the record for our review. Generally, “[w]hen the party
asserting an issue fails to provide a record sufficient for considering that issue,
[this] court may decline to consider it.” 10th Cir. R. 10.3(B). However, in this
(continued...)
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court imposed a sentence at the low end of the Guidelines range, for a sentence of
fifty-seven months incarceration and three years supervised release.
Following Mr. Villalobos-Lopez’s timely pro se notice of appeal, his
appointed counsel filed an Anders appeal brief explaining no meritorious issues
exist on appeal. See Anders, 386 U.S. at 744. In support, counsel points out: (1)
Mr. Villalobos-Lopez knowingly, voluntarily, and intelligently pled guilty with
the assistance of a Spanish translator; (2) he was advised of his rights and the
possible penalties for pleading guilty; (3) the district court sentenced him at the
low end of the recommended Guidelines range; and (4) no grounds otherwise
exist under Federal Rule of Criminal Procedure 35 for correcting or reducing his
sentence.
Pursuant to the requirements in Anders, this court gave Mr. Villalobos-
Lopez an opportunity to respond to his counsel’s Anders brief. See 386 U.S. at
744. On March 22, 2011, Mr. Villalobos-Lopez filed a response, stating in a few
vague and cursory sentences that he: (1) sustained injuries in Mexico just prior to
fleeing to the United States, as evidenced by an attached medical document
1
(...continued)
case, the absence of the presentence report in the record does not affect our
disposition of Mr. Villalobos-Lopez’s appeal, given neither he nor his counsel
provides any argument contending his sentence was improperly calculated under
the Guidelines or otherwise procedurally unreasonable.
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written in Spanish, and because of those injuries, “fear[ed] that if I stayed in
Mexico, I would be killed”; and (2) mistakenly believed, based on an attached
document from the Department of Justice Immigration and Naturalization Service,
that he “could freely enter and live in peace, in the United States.” It is unclear
from the record on appeal whether he presented either of these arguments or the
attached documents to the district court. The government filed a notice of its
intention not to file an answer brief in this appeal.
II. Discussion
As required by Anders, we have conducted a full examination of the record
before us. See id. A review of the plea documents establishes Mr. Villalobos-
Lopez waived his right to appeal his guilty plea and conviction and that even if
his guilty plea is examined, it was voluntarily, knowingly, and intelligently
entered, and his admissions as to the facts surrounding his illegal reentry support
both his plea and conviction. In those facts, he admitted to illegally entering the
country without permission, therefore making his claim on appeal that he
mistakenly believed he could reenter this country entirely self-serving.
As to his sentence, we review it for procedural and substantive
reasonableness. See United States v. Kristl, 437 F.3d 1050, 1053-55 (10 th Cir.
2006) (per curiam). Having made such a review, we find no nonfrivolous basis
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for challenging the sentence imposed. Neither Mr. Villalobos nor his counsel
contend the district court improperly calculated his Guidelines range of fifty-
seven to seventy-one months incarceration. Further, the district court sentenced
him to fifty-seven months imprisonment, which was at the low end of the
uncontested calculation of the advisory Guidelines range and entitled to a
rebuttable presumption of reasonableness. Id.
Mr. Villalobos-Lopez has not rebutted this presumption with any
nonfrivolous reason warranting a lower sentence. Id. Instead, he relies on
cursory arguments and two documents which he fails to show were provided to
the district court for its consideration. While we construe his pro se pleadings
liberally, see Haines v. Kerner, 404 U.S. 519, 520 (1972), we have held
perfunctory or cursory references to issues, which are unaccompanied by some
effort at developed argument, are inadequate to warrant consideration. See United
States v. Almaraz, 306 F.3d 1031, 1041 (10 th Cir. 2002). Similarly, we generally
will not address issues not supported by citation to legal authority. See
MacArthur v. San Juan County, 495 F.3d 1157, 1160-61 (10 th Cir 2007). In
addition, “[w]e have repeatedly declined to allow parties to assert for the first
time on appeal legal theories not raised before the district court, even when they
fall under the same general rubric as an argument presented to the district court.”
United States v. A.B., 529 F.3d 1275, 1279 n.4 (10 th Cir. 2008). As a result, we
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decline to consider his arguments or otherwise contemplate whether the district
court had an opportunity to consider Mr. Villalobos-Lopez’s circumstances
regarding his medical condition and safety or his contention he entered this
country legally as part of its consideration of the 18 U.S.C. § 3553(a) sentencing
factors. 2
III. Conclusion
For these reasons, no meritorious appellate issue exists. Accordingly, we
GRANT counsel’s motion to withdraw and DISMISS Mr. Villalobos-Lopez’s
appeal.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
2
While we decline to consider Mr. Villalobos-Lopez’s cursory arguments,
we note his allegations he was injured and/or feared for his safety in Mexico and
that he mistakenly believed he legally entered the United States are, alone,
insufficient grounds to rebut the substantive reasonableness of his sentence. This
is because explicit factors, such as the serious nature of his offense, his
characteristics and history, including his numerous other convictions, deterrence
and respect for the law, as well as other considerations, are weighed in imposing a
sentence under 18 U.S.C. § 3553(a). Alternatively, we also note 8 U.S.C. § 1326,
regarding the criminal conduct of illegal reentry under which Mr. Villalobos-
Lopez was convicted, requires no specific motive or intent, so that an alien’s
intent, motivation, or reasons for illegal entry into the country cannot serve as a
basis for departure for the purpose of reducing a sentence. See United States v.
Hernandez-Baide, 392 F.3d 1153, 1157-58 (10 th Cir. 2004), reinstated on remand,
146 F.App’x 302 (10 th Cir. 2005).
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