United States v. Valenzuela-Ramirez

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 16, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 07-2285
(D. Ct. No. 2:07-CR-01809-WJ-1)
RAYMUNDO VALENZUELA- (D. N. Mex.)
RAMIREZ,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before TACHA, KELLY, and McCONNELL, Circuit Judges.
Defendant-Appellant Raymundo Valenzuela-Ramirez pleaded guilty to a one-
count information charging him with illegally reentering the country after previously
being deported in violation of 8 U.S.C. § 1326(a)(1) and (2), and § 1326(b)(2). He was
sentenced to 41 months’ imprisonment. His attorney filed a timely notice of appeal,
followed by a brief and motion to withdraw pursuant to Anders v. California, 386 U.S.
738, 744 (1967). After reviewing the record, we agree that there are no meritorious issues
to raise on appeal. Accordingly, we GRANT the motion to withdraw and DISMISS Mr.
*
This order and judgment is not binding precedent except under the doctrines of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.
Valenzuela-Ramirez’s appeal.
I. BACKGROUND
On July 5, 2007, border patrol agents found Mr. Valenzuela-Ramirez, a citizen and
national of Mexico, in the United States where he freely admitted that he was illegally
present in the country. Subsequent criminal and immigration checks revealed that Mr.
Valenzuela-Ramirez had previously been deported after three convictions for transporting
illegal aliens. He was then charged with and pleaded guilty to one count of illegal
reentry under 8 U.S.C. § 1326(a)(1) and (2), and § 1326(b)(2).
The presentence report (“PSR”) determined the base offense level to be 8. See
U.S.S.G. § 2L1.2(a). The PSR recommended a sixteen-level enhancement because Mr.
Valenzuela-Ramirez had previously been deported after a conviction for an alien
smuggling offense. See § 2L1.2(b)(1)(A)(vii). After a three-level reduction for
acceptance of responsibility, see § 3E1.1(a) and (b), the PSR recommended a total offense
level of twenty-one. Mr. Valenzuela-Ramirez’s criminal history category was II, which
produced an advisory Guidelines range of forty-one to fifty-one months’ imprisonment.
The district court sentenced him to forty-one months.
II. DISCUSSION
The district court found that Mr. Valenzuela-Ramirez’s guilty plea was made
freely, voluntarily, and intelligently. Mr. Valenzuela-Ramirez never sought to withdraw
his plea below, and there is no indication he wishes to challenge his plea on appeal.
Nonetheless, we have reviewed the record, and we independently find no nonfrivolous
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basis for Mr. Valenzuela-Ramirez to challenge his plea. Thus, we turn to whether Mr.
Valenzuela-Ramirez’s sentence is reasonable. See United States v. Kristl, 437 F.3d 1050,
1053 (10th Cir. 2006).
During sentencing, Mr. Valenzuela-Ramirez objected to the sixteen-level
enhancement under § 2L1.2(b)(1)(A)(vii), which applies when the defendant has
previously been deported after “a conviction for a felony that is . . . (vii) an alien
smuggling offense.” The commentary to the Guidelines states that an “alien smuggling
offense” includes all offenses listed in 8 U.S.C. § 1101(a)(43)(N). U.S.S.G. § 2L1.2 cmt.
n.1(B)(i). That statute, in turn, includes offenses under 8 U.S.C. § 1324(a)(1)(A) and
(a)(2) within its definition. 8 U.S.C. § 1101(a)(43)(N). Mr. Valenzuela-Ramirez pleaded
guilty in 1999 to three counts of alien smuggling in violation of § 1324(a)(1)(A)(ii).
Morever, Mr. Valenzuela-Ramirez admitted to the elements of a § 1324(a) smuggling
offense at the sentencing hearing in this case.1 Accordingly, the district court properly
enhanced Mr. Valenzuela-Ramirez’s offense level by sixteen. The district court also
properly determined the base offense level to be 8, see § 2L1.2(a), properly subtracted
three levels for acceptance of responsibility, see § 3E1.1(a) and (b), and properly
calculated his criminal history category. Thus, because the district court correctly
1
Under 8 U.S.C. § 1324(a)(1)(A)(ii), a person is guilty of alien smuggling when
“knowingly or in reckless disregard for the fact that an alien has . . . entered . . . the
United States in violation of law, transports . . . such alien within the United States . . . .”
The defendant admitted to driving through Arizona with nine other men who proved to be
in the United States illegally. He also admitted to moving across the Mexican border with
them on foot, clearly establishing a reckless disregard for whether those men were in the
United States legally.
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determined the applicable Guidelines range and sentenced Mr. Valenzuela-Ramirez
within that range, his sentence is presumptively reasonable on appeal. See United States
v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008).
Mr. Valenzuela-Ramirez may rebut this presumption by showing that the factors
listed in 18 U.S.C. § 3553(a) justify a lower sentence. See id. Our review of the record
demonstrates that the district court did not abuse its discretion in refusing to vary
downward. See id. (noting that “we generally defer to [a district court’s] decision to
grant, or not grant, a variance based upon its balancing of the § 3553(a) factors” and
review that decision for abuse of discretion). Mr. Valenzuela-Ramirez’s sentence is
reasonable.
III. CONCLUSION
As required by Anders, we have conducted a full examination of the record before
us. The record establishes no nonfrivolous basis for challenging either Mr. Valenzuela-
Ramirez’s guilty plea or his sentence. Accordingly, we GRANT counsel’s motion to
withdraw and DISMISS this appeal.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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