UNITED STATES of America, Plaintiff-Appellee, v. Gonzalo ARIAS-LOPEZ, also known as Juan Barrios-Gramajo, Defendant-Appellant.
No. 13-6043.
United States Court of Appeals, Tenth Circuit.
Aug. 14, 2013.
532 F. App‘x 824
Teresa Marie Black, Debra W. Paull, Esq., Office of the United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee. Gonzalo Arias-Lopez, pro se. Julia Summers, Office of the Federal Public Defender, Oklahoma City, OK, for Defendant-Appellant. Before LUCERO, McKAY, and MURPHY, Circuit Judges.
MICHAEL R. MURPHY, Circuit Judge.
After examining appellant‘s brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See
Although he was charged under his alias name Gonzalo Arias-Lopez, the defendant‘s real name is Juan Barrios-Gramajo. Barrios-Gramajo pleaded guilty, without a plea agreement, to a single count of illegal reentry, in violation of
Barrios-Gramajo, a citizen of Guatemala, has spent most of his adult life in the United States. He was removed to Mexico once in 1997 and three times in 1999. He was removed to Guatemala once in 1999. Arrest records show his presence in the United States in 1988, 1989, 1990, 1995, 2004, 2007, 2009, and 2010, resulting in convictions for misdemeanor and felony thefts, traffic infractions, driving under the influence, and possession of cocaine with the intent to distribute. Barrios-Gramajo‘s most recent arrest occurred in 2010, when he was arrested on drug charges for the second time by Oklahoma state authorities. At that time, Immigration and Customs Enforcement (“ICE“) determined his alienage and placed a detainer on him. After Barrios-Gramajo served his state drug sentences and was paroled in 2012, he was transferred into ICE custody. He was then charged in federal court with Illegal Reentry. With the assistance of a federally certified interpreter, Barrios-Gramajo entered an unconditional guilty plea to the charges without a plea agreement.
The Presentence Investigation Report (“PSR“), which was disclosed to the parties prior to sentencing, recommended an advisory guideline range of fifteen to twenty-one months’ imprisonment. In response, Barrios-Gramajo filed an abbreviated sentencing memorandum in support of a sentence below the advisory guideline range. He asserted his conviction for illegal reentry was a regulatory, not malicious, offense; his intention in returning to the United States was to work to help support his family in Guatemala; he had never been prosecuted before for illegal entry or reentry, and thus did not appreciate the serious legal consequences of returning; he had participated in educational programs during his time in state custody; and his remaining state probation would be an additional deterrent to unlawful reentry in the future. At the sentencing hearing, the district court concluded the applicable guideline range was fifteen to twenty-one months’ imprisonment, as calculated in the PSR. It then granted Barrios-Gramajo‘s request for credit, in the form of a downward variance, for time spent in ICE detention. Thus, the district court sentenced Barrios-Gramajo to serve a term of fourteen months’ imprisonment, one month below the advisory guideline range, with no supervised release to follow.
Counsel has filed an Anders brief advising the court this appeal is wholly frivolous. Accordingly, counsel seeks permission to withdraw. Pursuant to Anders, counsel may “request permission to withdraw where counsel conscientiously examines a case and determines that any appeal would be wholly frivolous.” United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005). Counsel is required to submit an appellate brief “indicating any potential
Counsel identifies two potentially appealable issues, but recognizes both issues are wholly frivolous. Although Barrios-Gramajo has not asserted his unconditional guilty plea was unknowing or involuntary, counsel raises the issue as a precautionary matter. As recognized by counsel, however, the transcript of the plea colloquy shows the district court complied fully with the procedure set forth in
Counsel indicates Barrios-Gramajo wishes to challenge the length of the sentence imposed by the district court. See United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th Cir.2006) (noting an assertion a sentence is too long is a challenge to the substantive reasonableness of the sentence). As recognized by counsel, however, Barrios-Gramajo‘s challenge to the substantive reasonableness of his sentence is undeniably meritless. The PSR calculated the total offense level as ten. Barrios-Gramajo‘s eight criminal convictions spanning twenty-two years, some of which could not be counted due to age, yielded a criminal history category IV. The resulting guideline range was fifteen to twenty-one months’ imprisonment. The district court granted Barrios-Gramajo‘s request for a sentence below the advisory guidelines range based on time he had spent in ICE custody which would not be credited by the BOP. When a sentence falls within a properly calculated guidelines range, it is entitled to a rebuttable presumption of reasonableness. United States v. Parker, 553 F.3d 1309, 1322 (10th Cir.2009). Likewise, a below-guidelines sentence is entitled to the same rebuttable presumption of reasonableness. United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir.2011). Thus, Barrios-Gramajo bears the burden of demonstrating his sentence is outside the “range of possible outcomes the facts and law at issue can fairly support” under the sentencing factors presented in
Pursuant to the Anders mandate, this court has undertaken an independent review of the entire record in this case. Calderon, 428 F.3d at 930. Our review demonstrates that both of the issues set out in counsel‘s Anders brief are undeniably frivolous. Likewise, this court‘s review of the entire record reveals no other potentially meritorious issues. Accordingly, we GRANT counsel‘s motion to withdraw and DISMISS this appeal.