United States v. Valenciano

FILED
United States Court of Appeals
Tenth Circuit
May 20, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-1302
v. (D.Ct. No. 07-cr-46-EWN)
(D. Colo.)
SALOMON VALENCIANO,
Defendant-Appellant.
____________________________
ORDER AND JUDGMENT *
Before TACHA, Circuit Judge, and ANDERSON and BRORBY, Senior 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.
Appellant Salomon Valenciano pled guilty to one count of unlawful re-
*
This order and judgment is not binding precedent except under the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.
entry of a deported alien subsequent to a felony conviction, in violation of 8
U.S.C. § 1326(a) and (b)(2). The district court sentenced Mr. Valenciano to
forty-one months imprisonment. Although Mr. Valenciano appeals his conviction
and sentence, his attorney has filed an Anders brief and a request for permission
to withdraw as counsel, which we construe as a motion to withdraw. 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 February 5, 2007, a one-count indictment issued charging Mr.
Valenciano with unlawful re-entry of a previously deported alien in violation of 8
U.S.C. § 1326(a) and (b)(2). Mr. Valenciano pled guilty as charged in exchange
for the government’s offer to recommend a sentence at the bottom of the
applicable advisory Guidelines range. In pleading guilty, Mr. Valenciano
submitted a statement in advance of his guilty plea which included, in part, his
wish to plead guilty to the offense charged and acknowledgment of his
understanding of the penalties he faced and rights he would relinquish in pleading
guilty.
At the plea hearing, the district court conducted a Rule 11 colloquy. See
Fed. R. Crim. P. 11. During the hearing, Mr. Valenciano indicated, in part, that
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he: (1) understood the charges against him and the provisions of the plea
agreement which he entered and signed; (2) understood the offense to which he
was pleading guilty was a serious felony offense; (3) acknowledged he discussed
the offense charged and his plea agreement and consequences of entering such a
plea with his counsel, with whom he was satisfied; (4) understood the penalties
associated with pleading guilty and his rights as explained to him and that by
pleading guilty he was giving up those rights; (5) acknowledged he entered the
country illegally after prior deportation following an aggravated felony
conviction; and (6) confirmed his wish to plead guilty to the offense charged. In
accepting his guilty plea, the district court found Mr. Valenciano’s guilty plea
was knowing and voluntary and that he was fully competent and capable of
entering an informed plea.
After Mr. Valenciano pled guilty, a probation officer prepared a
presentence report calculating his sentence under the applicable United States
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). The probation officer
calculated the base offense level at eight under U.S.S.G. § 2L1.2(a) and added an
eight-level adjustment under § 2L1.2(b)(1)(C) because Mr. Valenciano had been
deported subsequent to having been convicted for an aggravated felony offense.
In addition, based on Mr. Valenciano’s acceptance of responsibility for the
offense of conviction, the probation officer included a three-level reduction, for a
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total offense level of thirteen. A total offense level of thirteen, together with a
criminal history category of VI, resulted in a Guidelines imprisonment range of
thirty-three to forty-one months. Neither party filed objections to the presentence
report.
Prior to sentencing, Mr. Valenciano filed a motion for a downward
departure, arguing his criminal history was over-represented because four of his
convictions were misdemeanors and contending it was unlikely he would commit
further crimes. At the sentencing hearing, the district court denied Mr.
Valenciano’s request for a downward departure, pointing out his entire criminal
history included three uncounted prior convictions for illegal re-entry into the
United States which were not included in his criminal history category of VI. The
district court considered these three uncounted prior convictions, together with
the fact Mr. Valenciano was before the court on his eleventh conviction and had
returned to the United States on seven occasions after deportation, to conclude his
criminal history category properly represented the seriousness of his criminal
history, accurately reflected the fact he was a recidivist, and was the driving force
for imposition of a sentence at the top of the Guidelines range. After adopting the
uncontested facts in the presentence report and explaining it had considered the
applicable Guidelines and 18 U.S.C. § 3553(a) sentencing factors, the district
court imposed a forty-one-month term of imprisonment.
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Following Mr. Valenciano’s timely notice of appeal, his appointed counsel
filed an Anders appeal brief explaining that, after a conscientious examination,
the appeal is wholly frivolous as no legally viable or meritorious issues exist to
contest the validity of his conviction and sentence. See Anders, 386 U.S. at 744.
In support, counsel pointed out: (1) Mr. Valenciano’s guilty plea was entered into
voluntarily and intelligently; (2) sufficient evidence existed to form a factual
basis for his plea based on the uncontested fact he was previously deported
following an aggravated felony conviction and re-entered the country without the
government’s permission; and (3) the forty-one-month sentence was procedurally
and substantively reasonable. Pursuant to Anders, this court gave Mr. Valenciano
an opportunity to respond to his counsel’s Anders brief. See 386 U.S. at 744. To
date, Mr. Valenciano has filed no response.
II. Discussion
As required by Anders, we have conducted a full examination of the record
before us. See id. The record establishes Mr. Valenciano’s guilty plea was
voluntarily, knowingly, and intelligently entered and that sufficient evidence
supported both his plea and conviction. We review Mr. Valenciano’s sentence for
reasonableness, as guided by the factors in 18 U.S.C. § 3553(a). See United
States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006) (per curiam). Having made
such a review, we find no nonfrivolous basis for challenging the sentence
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imposed. The district court properly considered Mr. Valenciano’s request for a
downward departure, together with the sentencing factors in § 3553(a), the
advisory Guidelines, and the uncontested facts in the presentence report. The
district court then sentenced him to forty-one months imprisonment, which is
within the advisory Guidelines range of thirty-three to forty-one months
imprisonment and is entitled to a rebuttable presumption of reasonableness. Id. at
1053-55. Mr. Valenciano has not rebutted that presumption with any
nonfrivolous reason warranting a lower sentence. Id.
III. Conclusion
For these reasons, no meritorious appellate issue exists. Accordingly, we
grant counsel’s motion to withdraw and DISMISS Mr. Valenciano’s appeal.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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