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

                                       TENTH CIRCUIT                          October 26, 2015

                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

v.                                                           No. 15-6093
                                                     (D.C. No. 5:15-CR-00001-F-1)
JOSE JESUS GARCIA-JIMENEZ,                                   (W.D. Okla.)

               Defendant - Appellant.




                             ORDER DISMISSING APPEAL


Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges.


      Jose Jesus Garcia-Jimenez, a citizen of Mexico, pled guilty to illegal reentry after

deportation in violation of 8 U.S.C. § 1326(a). Appointed counsel reviewed the record

and found no arguable issue for appeal. Based on that review she filed an Anders1 brief

and has moved to withdraw. At our invitation, Garcia-Jimenez filed a response. The

government has declined to respond. Because we agree with counsel that there are no

meritorious issues, we grant the motion to withdraw and dismiss the appeal.




      1
          See Anders v. California, 386 U.S. 738 (1967).
                                       I. Background

           Garcia-Jimenez first entered the United States as a teenager. He was eventually

granted Lawful Permanent Resident status in 1989, when he was 25-years-old. However,

a string of drug convictions eventually led to that status being revoked and to his removal

from the United States in 1997. He reentered the United States and was again removed in

1999. Once again he reentered and in 2003 he was arrested for burglary. After serving a

5-year sentence for the burglary, he was again removed in February 2007. In November

 2011, he was found in the United States committing various drug and firearm offenses.

He pled guilty in state court to possession of a controlled substance and was sentenced to

   6 years in prison (2011 state court conviction). Upon completion of that sentence in

 December 2014, he was indicted in federal court with illegal reentry after deportation in

        violation of 8 U.S.C. § 1326(a).2 He pled guilty without a plea agreement.

       The presentence report (PSR) determined the base offense level was 8. See

USSG §2L1.2(a). To that, it added 16 levels because he had been previously deported

following a felony drug-trafficking conviction for which the sentence imposed exceeded

13 months—a 1994 state conviction for possession of a controlled substance with intent

to distribute (1994 drug conviction). See USSG §2L1.2(b)(1)(A)(i). Applying a three-

level downward adjustment for acceptance of responsibility, see USSG §3E1.1, the total

offense level was 21. With a Criminal History Category of VI, the advisory guideline


       2
         Tragically, this is Garcia-Jimenez’s first prosecution for illegal reentry despite
his continuing criminal activities in the United States as a repeatedly removed alien.



                                             -2-
range was 77-96 months’ imprisonment. He did not object to the guideline calculation.

He requested a downward variance to time served or, in the alternative, 12 months. The

district judge varied downward from the advisory guideline range to 65 months.

                                      II. Discussion

       Our task in an Anders case is to “conduct a full examination of the record to

determine whether defendant’s claims are wholly frivolous.” United States v. Calderon,

428 F.3d 928, 930 (10th Cir. 2005). If they are, we may grant counsel’s motion to

withdraw and dismiss the appeal. Id. “Frivolous means lacking a legal basis or legal

merit; not serious; not reasonably purposeful.” United States v. Lain, 640 F.3d 1134,

1137 (10th Cir. 2011) (quotations omitted).

       In the Anders brief, counsel identifies one potential error—the sentence is

substantively unreasonable. Garcia-Jimenez himself raises two issues, both challenging

the procedural reasonableness of his sentence. We address his arguments first.

       A. Procedural Reasonableness

       “After the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125

S. Ct. 738, 160 L.Ed.2d 621 (2005), this court reviews sentences for reasonableness.”

United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009). “Reasonableness

review is a two-step process comprising a procedural and a substantive component.” Id.

(quotations omitted). Procedural reasonableness “relates to the manner in which the

district court calculated and explained the sentence.” United States v. A.B., 529 F.3d

1275, 1278 (10th Cir. 2008).




                                           -3-
       Garcia-Jimenez argues the judge erred in applying the 16-level enhancement to his

sentence and did not know he had the authority to adjust the sentence under USSG

§5G1.3(b) for the time he served on his 2011 state court conviction. Both arguments

concern the procedural reasonableness of his sentence. See United States v. Cook, 550

F.3d 1292, 1295 (10th Cir. 2008) (“A challenge to the application of a sentencing

enhancement tests the procedural reasonableness of a sentence, which requires, among

other things, a properly calculated Guidelines range.”) (quotations omitted); United States

v. Smith, 540 F. App’x 854, 857 (10th Cir. 2013) (unpublished) (“The district court’s

failure to account for U.S.S.G. § 5G1.3 in calculating Defendant’s within-guideline

sentencing range is . . . undoubtedly procedural . . . .”). Because Garcia-Jimenez did not

object in the district court on these grounds, our review is for plain error. See United

States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007). “Plain error occurs when

there is (i) error, (ii) that is plain, which (iii) affects the defendant’s substantial rights, and

which (iv) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id.

       Although not a model of clarity, Garcia-Jimenez’s first argument claims the judge

erred in applying the 16-level enhancement based on his 1994 drug conviction because

simple possession is no longer a deportable offense. He also says the judge should have

looked to the nature of the conviction to determine whether it qualified as a “crime of

violence” warranting a 16-level enhancement. He is confused on many levels. First, his

1994 drug conviction was not for a simple possession crime; it was for possession of a

controlled substance with intent to distribute. Second, we are not concerned here with

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whether his 1994 drug conviction is a deportable offense; the question is whether it

supports a 16-level enhancement to his sentence under USSG §2L1.2(b)(1)(A)(i).

Finally, the 16-level enhancement was not applied because his 1994 drug conviction

constituted a felony conviction for “a crime of violence” under USSG §2L1.2(b)(1)(a)(ii).

Rather, the enhancement was applied, and properly so, because his 1994 drug conviction

is a felony conviction for “a drug trafficking offense for which the sentence imposed

exceeded 13 months” under USSG §2L1.2(b)(1)(a)(i).

       His second argument is equally unavailing. USSG §5G1.3(b) requires a

sentencing judge to “adjust the sentence for any period of imprisonment already served

on [an] undischarged term of imprisonment if the court determines that such period of

imprisonment will not be credited to the federal sentence by the Bureau of Prisons.” But

the guideline only applies if there is an undischarged term of imprisonment. At the time

he was indicted for the instant offense, Garcia-Jimenez had already completed his

sentence on his 2011 state court conviction.3

       B. Substantive Reasonableness

       3
         The judge did take into account the time Garcia-Jimenez spent in state custody in
fashioning the ultimate sentence. See USSG §2L1.2, comment. (n.8) (allowing a judge to
depart, after other factors are considered, in cases where “the defendant is located by
immigration authorities while the defendant is serving time in state custody, whether pre-
or post-conviction, for a state offense [and] the time served is not covered by an
adjustment under § 5G1.3(b)”; “[i]n such a case, the court may consider whether a
departure is appropriate to reflect all or part of the time served in state custody, from the
time immigration authorities locate the defendant until the service of the federal sentence
commences, that the court determines will not be credited to the federal sentence by the
Bureau of Prisons”).




                                            -5-
       Substantive reasonableness review “focuses on 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).” Friedman, 554 F.3d at 1307 (quotations omitted). We review the

substantive reasonableness of a sentence under an abuse-of-discretion standard. United

States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008). A sentence is substantively

unreasonable only if the district court “exceeded the bounds of permissible choice, given

the facts and the applicable law in the case at hand.”4 United States v. McComb, 519

F.3d 1049, 1053 (10th Cir. 2007) (quotations omitted). Because Garcia-Jimenez’s

sentence is below the properly calculated advisory guidelines range, it is entitled to a

presumption of reasonableness. United States v. Trent, 767 F.3d 1046, 1051 (10th Cir.

2014). He can overcome that presumption only by “demonstrating that the sentence is

unreasonable in light of the other sentencing factors laid out in § 3553(a).” United States

v. Reyes-Alfonso, 653 F.3d 1137, 1145 (10th Cir. 2011). He has not satisfied his burden.

       Counsel raises several potential arguments for why the sentence could be

considered substantively unreasonable. At the same time, however, she acknowledges

their frivolity. First, she says the sentence is the result of unfair double-counting of his

1994 drug conviction—which was used to enhance his sentence 16-levels under USSG

§2L1.2(b)(1)(A)(i) and to figure his criminal history. But, as counsel admits, “we have

       4
         Because Garcia-Jimenez argued for a below guideline sentence in the district
court, he sufficiently preserved the substantive reasonableness argument for appeal. See
United States v. Mancera–Perez, 505 F.3d 1054, 1058–59 (10th Cir. 2007); United States
v. Torres–Duenas, 461 F.3d 1178, 1182–83 (10th Cir. 2006).




                                             -6-
routinely upheld as reasonable the use of prior convictions to calculate both the criminal

history category and a sentence enhancement where . . . the Guidelines authorize it.”

Ruiz-Terrazas, 477 F.3d at 1204. In this case, USSG §2L1.2 expressly allows such

double-counting. See USSG §2L1.2, comment. (n.6) (“A conviction taken into account

under subsection (b)(1) is not excluded from consideration of whether that conviction

receives criminal history points pursuant to Chapter Four, Part A (Criminal History).”).

       Counsel also posits (hypothetically) that the 16-level enhancement under USSG

§2L1.2(b)(1)(A)(i) renders the sentence substantively unreasonable because the

enhancement “is based on a flawed guideline which is completely lacking in empirical

support for any of the sentencing goals presented in [18 U.S.C. § 3553(a)].” (Appellant’s

Anders Br. at 11.) Again, as counsel concedes, we have rejected such argument. See

United States v. Alvarez-Bernabe, 626 F.3d 1161, 1165-66 (10th Cir. 2010); United

States v. Hernandez-Castillo, 514 F. App’x 742, 744 (10th Cir. 2013) (unpublished).

       Finally, she points to several mitigating circumstances which were argued below

and which she claims could support a sentence substantially below the advisory guideline

range: (1) his motivation to return to the United States to support his loved ones; (2) his

lack of education due to poverty and the need to work from an early age to help support

his family; (3) his relatively short history of removals from the United States with no

previous prosecution for an immigration offense; (4) his drug addiction which

contributed to his substantial but nonviolent criminal history; (5) his age (51 at

sentencing) and health; and (6) the fact deportation will itself impose significant

punishment. But the judge considered these mitigating circumstances, as well as Garcia-

                                            -7-
Jimenez’s personal plea for leniency and his (rather dubious) commitment to not reenter

the United States. He also acknowledged Garcia-Jimenez had been a hard worker, had

tried to provide for his family, and that his most recent drug conviction was over 3 years

old.5 However, considering the sentencing factors of § 3553(a), in particular

deterrence/incapacitation, the judge concluded a sentence below the advisory guidelines

range (but not a “radically reduced” sentence) was appropriate:

       Mr. Garcia, when I look at your criminal record in the United States, when I look
       at the fact that your three drug convictions, including one of possession with intent
       to distribute, are crimes that do involve substances that do ruin families and ruin
       lives, yours as well as those of others when you distribute those horrible
       substances, I find myself not just concerned about your children but about other
       children and the other children who are put at risk by criminal behavior such as
       your previous criminal behavior.

(R. Vol. 3 at 19-20.) Considering his repeated illegal reentries into this country, as well

as his significant criminal history, a 65 month sentence is condign punishment. The

judge certainly did not abuse his discretion in refusing to vary even more drastically.

       After a careful review of the entire record, we find no reason to question the

voluntariness of Garcia-Jimenez’s guilty plea or the procedural or substantive

reasonableness of his sentence. Like counsel, we see no non-frivolous grounds for

appeal.




       5
        This is not a surprise; he was serving his prison term for his 2011 state court
conviction continuously from November 2011 to his federal sentence.




                                            -8-
We GRANT the motion to withdraw and DISMISS this appeal.


                                     Entered by the Court:

                                     Terrence L. O’Brien
                                     United States Circuit Judge




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