                                                                                      FILED
                                                                          United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                              August 17, 2016
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 16-1044
                                                 (D.C. No. 1:15-CR-00295-REB-DW-1)
ERNESTO ALONZO-GARCIA, a/k/a                                   (D. Colo.)
Ernesto Rodriguez,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       Emanuel Alonzo-Garcia pled guilty to one count of reentry of a removed alien in

violation of 8 U.S.C. § 1326. He was sentenced to 16 months of imprisonment, to run

consecutively to a sentence for a separate state conviction. He filed a timely notice of

appeal of the district court’s sentencing. After a diligent search of the record, Mr.

Alonzo-Garcia’s counsel determined there were no non-frivolous issues that could


       *
         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. This order and judgment is not binding precedent,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.
support an appeal. He therefore filed a motion to withdraw and a brief pursuant

to Anders v. California, 386 U.S. 738 (1967). Exercising jurisdiction under 28 U.S.C.

§ 3742(a)(2) and finding no non-frivolous issues, we dismiss the appeal. We also grant

counsel’s motion to withdraw.

                                  I. BACKGROUND

                                  A. Factual History

       On May 15, 2014, Colorado officers arrested Mr. Alonzo-Garcia and charged him

with 1) sexual assault on a child, 2) assault, and 3) child abuse. The officers informed

federal immigration agents of the arrest. The immigration agents discovered Mr. Alonzo-

Garcia had been previously removed from the United States in 2008 after he had been

arrested and convicted of a felony drug offense. Mr. Alonzo-Garcia was charged in

federal court with being a removed alien in the United States in violation of 8 U.S.C.

§§ 1326(a) and (b)(1).

                                B. Procedural History

       In state court, Mr. Alonzo-Garcia pled guilty to misdemeanors of child abuse and

third degree assault and to the felony of attempted sexual assault on a child. The state

court sentenced Mr. Alonzo-Garcia to one year in prison for each of the misdemeanors

and three years for the felony conviction, to run concurrently. After sentencing in state




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court, Mr. Alonzo-Garcia was transferred to federal custody by a writ of habeas corpus ad

prosequendum.1

       While in federal custody on the writ of habeas corpus, Mr. Alonzo-Garcia pled

guilty to the 8 U.S.C. § 1326 violation. The U.S. Probation Office prepared a

presentence investigation report (“PSR”), which calculated an offense level of 10 and a

criminal history category of III for Mr. Alonzo-Garcia. This yielded a Guidelines range

of 10 to 16 months in prison.

       At sentencing, Mr. Alonzo-Garcia requested 1) his federal sentence to run

concurrently to his state sentence and 2) a variance from the PSR’s Guidelines range.

The district court adopted the PSR’s sentencing calculations, and Mr. Alonzo-Garcia did

not object.

       The district court declined to grant Mr. Alonzo-Garcia’s request for a concurrent

sentence or a variance, explaining that he had “considered carefully the sentencing

factors and needs at 18 U.S.C. Section 3553(a)(1) through (7), and . . . in that process of

analysis, made an individualized assessment based on the facts presented.” ROA, Vol. 4

at 38. Among other things, the court noted Mr. Alonzo-Garcia’s criminal history,

including his “felonies, both for a serious drug-related felony charge, and . . . for a


       1
         Although Mr. Alonzo-Garcia was in federal custody on the writ, he was still
subject to the primary custody of Colorado. See Weekes v. Fleming, 301 F.3d 1175, 1180
(10th Cir. 2002) (explaining if a state is the first arresting sovereign, it has primary
custody over a defendant and maintains this custody even if the United States takes
“temporary custody under either a detainer and written request for temporary custody or a
writ of habeas corpus ad prosequendum”).



                                              -3-
serious attempted sexual assault on a child.” Id. at 39. The district court sentenced Mr.

Alonzo-Garcia to 16 months in prison to run consecutively to his state sentence.

                                     II. DISCUSSION

                                     A. Anders Brief

        We appointed the Federal Public Defender’s Office for the Districts of Colorado

and Wyoming to represent Mr. Alonzo-Garcia on appeal. On May 20, 2016, Mr. Alonzo-

Garcia’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

which

        authorizes counsel to request permission to withdraw where counsel
        conscientiously examines a case and determines that any appeal would be
        wholly frivolous. Under Anders, counsel must submit a brief to the client
        and the appellate court indicating any potential appealable issues based on
        the record. The client may then choose to submit arguments to the court.
        The Court must then conduct a full examination of the record to determine
        whether defendant’s claims are wholly frivolous. If the court concludes
        after such an examination that the appeal is frivolous, it may grant
        counsel’s motion to withdraw and may dismiss the appeal.
United States v. Calderon, 428 F.3d 928, 930 (10th Cir. 2005) (citations omitted).

        Counsel indicated he could detect no “non-frivolous grounds on which to attack

Mr. Alonzo-Garcia’s conviction or sentence.” Aplt. Br. at 1. He therefore sought

permission to withdraw. Counsel mailed a copy of his Anders brief to Mr. Alonzo-

Garcia, who did not file a response.2


        2
         As he explains in his Anders brief, Mr. Alonzo-Garcia’s counsel has complied
with our requirement from United States v. Cervantes that “when a defense attorney
representing a non-English-speaking defendant seeks to withdraw under Anders, counsel
must make reasonable efforts to contact the defendant in person, by telephone, or through
written notice and explain in a language the defendant understands ‘the substance of
counsel’s Anders brief, the defendant’s right to oppose it . . . , and the likelihood that the
                                                                                 Continued . . .

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       We have conducted a full review of the record and agree with Mr. Alonzo-

Garcia’s counsel that it indicates no non-frivolous issues that may be appealed.

His Anders brief considers whether Mr. Alonzo-Garcia’s sentence is reasonable.3

                                  B. Applicable Law

       “[T]his Court reviews sentences for reasonableness, as informed by the 18 U.S.C.

§ 3553(a) sentencing factors.” United States v. Montgomery, 550 F.3d 1229, 1233 (10th

Cir. 2008); see also Gall v. United States, 552 U.S. 38, 46 (2007). This review consists

of two components: procedural and substantive reasonableness. See Gall, 552 U.S. at

51. We address both the procedural and substantive reasonableness of Mr. Alonzo-

Garcia’s sentence.

1. Procedural Reasonableness

       We review a sentence’s procedural reasonableness for plain error when, as here,

the defendant did not object in the district court. United States v. Booker, 543 U.S. 220,

268 (2005); United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007). The

district court adequately explained its reasoning for the sentence in open court and

considered Mr. Alonzo-Garcia’s request for a downward variance, his request for a


brief could result in dismissal of the appeal.’” 619 F. App’x 725, 727 (10th Cir. 2015)
(quoting States v. Leyba, 379 F.3d 53, 56 (2d Cir. 2004)).
       3
        The Anders brief also discusses 1) Mr. Alonzo-Garcia’s guilty plea and 2) his
concern with being sentenced by both the Colorado state court and the federal district
court. We agree with Mr. Alonzo-Garcia’s counsel that there are no non-frivolous
arguments to raise as to either of these aspects of Mr. Alonzo-Garcia’s conviction and
sentencing. We address below whether Mr. Alonzo-Garcia could have raised a non-
frivolous challenge to the reasonableness of his sentence.



                                             -5-
concurrent sentence, and the § 3553(a) factors. Mr. Alonzo-Garcia does not contest the

procedural reasonableness of his sentencing, and nothing suggests that the district court’s

sentencing was error.

2. Substantive Reasonableness

       Substantive reasonableness addresses “whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth in 18

U.S.C. § 3553(a).” United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008)

(quotations omitted). We “review the substantive reasonableness of a sentence for abuse

of discretion.” United States v. Chavez, 723 F.3d 1226, 1233 (10th Cir. 2013). This

review includes the district court’s decision to impose a consecutive sentence or grant a

variance. United States v. Fay, 547 F.3d 1231, 1235 (10th Cir. 2008); United States v.

Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008). We find no abuse of discretion “unless

[the sentence] is arbitrary, capricious, whimsical, or manifestly unreasonable.” United

States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (quotations omitted).

       When, as here, a defendant is sentenced within a properly calculated United States

Sentencing Guidelines range, the sentence “is entitled to a rebuttable presumption of

reasonableness.” United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006)

(quotations omitted).

       Mr. Alonzo-Garcia has not demonstrated the district court abused its discretion.

First, Mr. Alonzo-Garcia has not offered any argument to rebut the presumption that his

sentence is substantively reasonable.




                                              -6-
       Second, the district court acted within its broad discretion in deciding 1) not to

grant a variance or 2) to impose a federal sentence consecutive to an unrelated state

sentence. See Setser v. United States, 132 S. Ct. 1463, 1473 (2012) (explaining that

district courts have discretion to impose federal sentences consecutively to state

sentences); United States v. Angel-Guzman, 506 F.3d 1007, 1019 (10th Cir. 2007)

(explaining district courts have discretion to not grant variances).

       Third, Mr. Alonzo-Garcia’s criminal history, which includes “felonies, both for a

serious drug-related felony charge, and . . . for a serious attempted sexual assault on a

child,” ROA, Vol. 4 at 39, provided a sufficient basis to support the district court’s

decision.

                                    III. CONCLUSION

       The Anders brief of Mr. Alonzo-Garcia’s counsel does not identify any other

arguments—frivolous or otherwise—for reversal, and our independent review of the

record uncovered no potentially meritorious claims. We therefore grant counsel’s motion

to withdraw and dismiss this appeal.

                                           ENTERED FOR THE COURT,



                                           Scott M. Matheson, Jr.
                                           Circuit Judge




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