United States v. Barocio-Mendez
547 F. App'x 910
10th Cir.2013Background
- Delfino Barocio-Mendez (referred to as Barocio) previously removed from U.S. multiple times and pled guilty on Feb. 7, 2013 to illegal reentry in violation of 8 U.S.C. § 1326(a), (b)(2) without a plea agreement.
- Presentence Investigation Report (PSR) calculated a Guidelines range of 24–30 months (offense level 13, criminal history category IV); Barocio did not object to PSR calculations.
- Barocio filed a sentencing memorandum requesting a below-Guidelines sentence, arguing among other things that U.S.S.G. § 2L1.2 double-counted a prior conviction and pointing to mitigating circumstances.
- The district court adopted the PSR, declined to vary, and imposed a 24-month sentence (the bottom of the Guidelines range); Barocio timely appealed.
- Counsel filed an Anders brief seeking leave to withdraw, identifying only sentencing issues as potentially appealable; no response was filed by Barocio or the government.
- The Tenth Circuit reviewed the record, found no nonfrivolous issues, granted counsel’s motion to withdraw, and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural challenge to sentence | Barocio argued sentencing factors and PSR calculations justified appellate review | District court followed PSR and stated reasons under § 3553(c) | Frivolous — no procedural error found |
| Substantive reasonableness of within-Guidelines sentence | Barocio urged that double-counting under § 2L1.2 and mitigating facts warranted a lower sentence | Court relied on presumption of reasonableness for within-Guidelines sentence and declined to vary | Frivolous — sentence not substantively unreasonable |
| Claim that § 2L1.2 double-counts prior conviction | Barocio contended guideline offense-level enhancement and criminal-history increase double-count same conviction | Precedent rejects that such computations render sentence substantively unreasonable | Frivolous under controlling Tenth Circuit precedent |
| Adequacy of Anders procedure given language abilities | Barocio had limited English; counsel provided Spanish translation of Anders brief | No claim that translation was inadequate was pursued on appeal | Satisfied — court commended counsel’s translation effort |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (establishing counsel’s duties when seeking to withdraw on grounds appeal is frivolous)
- United States v. Huckins, 529 F.3d 1312 (10th Cir.) (standard for reasonableness review of sentence)
- United States v. Parker, 553 F.3d 1309 (10th Cir.) (presumption of substantive reasonableness for within-Guidelines sentences)
- United States v. Algarate-Valencia, 550 F.3d 1238 (10th Cir.) (rejecting double-counting argument under § 2L1.2 as rendering sentence unreasonable)
- United States v. Alvarez-Bernabe, 626 F.3d 1161 (10th Cir.) (district court not required to rewrite Guidelines policy)
- United States v. Ruiz-Terrazas, 477 F.3d 1196 (10th Cir.) (distinguishing required statement of reasons for within- versus outside-Guidelines sentences)
- United States v. Leyba, 379 F.3d 53 (2d Cir.) (due process concerns when defendant has limited English; note on translation/communication)