                                                                        F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        May 18, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                     No. 06-8035
          v.                                            (D. W yoming)
 RA M IRO PORTILLO-ALV AR EZ,                     (D.C. No. 05-CR-297-ABJ)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O'BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist 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.

      Ramiro Portillo-Alvarez pleaded guilty to a single count of illegal reentry

by a previously removed alien in violation of 8 U.S.C. § 1326(a). Because his

prior removal was subsequent to a California felony conviction for possession of


      *
        This order and judgment is not binding precedent except under the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.
a controlled substance for sale, his illegal reentry in this case subjected him to a

twenty-year maximum sentence. 8 U.S.C. § 1326(b)(2). Based on a total offense

level of twenty-one and a criminal history category of III, Portillo-Alvarez’s

advisory Sentencing Guidelines range w as forty-six to fifty-seven months’

imprisonment. At sentencing, Portillo-Alvarez asked the district court to depart

downward two levels from the otherwise applicable offense level on the basis of

USSG § 5K2.11 (lesser harms). Such a departure w ould result in an advisory

Guidelines range of thirty-seven to forty-six months’ imprisonment. In support of

his request for a § 5K2.11 departure, Portillo-Alvarez argued his family home in

M exico was subject to an ongoing ownership dispute, which dispute had already

resulted in the murder, inter alia, of his father and brother. According to Portillo-

Alvarez, he had returned to the United States to avoid a similar fate.

      The district court denied the request for a downward departure, concluding

the circumstances surrounding the murder of Portillo-Alvarez’s family members

raised as many questions as answ ers. It noted those circumstances, especially

when coupled with Portillo-Alvarez’s own criminal history and the circumstances

surrounding his arrest in this case, 1 indicated a possibility the deaths flowed from

involvement in the drug trade rather than from a simple land dispute. Thus, after

having considered the factors set out in 18 U.S.C. § 3553(a) and the range

       1
       Portillo-Alvarez was arrested on the periphery of a substantial narcotics
bust by the W yoming Division of Criminal Investigation under circumstances
which, at a minimum, suggest he was involved in the drug conspiracy.

                                          -2-
suggested in the advisory Sentencing Guidelines, the district court imposed a

sentence of forty-six months, a sentence at the very bottom of the advisory

Guidelines range.

      Portillo-Alvarez’s counsel has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), advising the court that Portillo-Alvarez’s appeal is wholly

frivolous. Accordingly, counsel also seeks permission to withdraw. Under

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

appealable issues.” Id. Once notified of counsel’s brief, the defendant may then

submit additional arguments to this court. Id. W e “must then conduct a full

examination of the record to determine whether defendant’s claims are wholly

frivolous.” Id. Portillo-Alvarez was given notice of the Anders brief and

counsel’s motion to withdraw, but did not file a brief of his own. Our resolution

of the case is, therefore, based on counsel’s Anders brief, the government’s

response, and this court’s independent review of the record.

      In his Anders brief, counsel notes that Portillo-Alvarez insisted on appealing

his sentence on the simple ground that it is too long. Counsel further asserts that

such an appeal is frivolous because this court does not have jurisdiction to review

a sentence on this ground when the sentence imposed is w ithin a properly

                                          -3-
calculated Guideline range. For this proposition, counsel relies on United States v.

Garcia, 919 F.2d 1478, 1481 (10th Cir. 1990). W hile counsel’s contention was

surely correct prior to the Supreme Court’s decision in United States v. Booker,

543 U .S. 220 (2005), it is at odds with the current state of the law. For all those

reasons set out at length in United States v. Sanchez-Juarez, 446 F.3d 1109, 1112-

14 (10th Cir. 2006), it is clear post-Booker that this court has jurisdiction to

review the reasonableness of a sentence whether or not the sentence is inside or

outside of the range set out in the advisory Sentencing Guidelines. 2

      Although counsel is incorrect in asserting this appeal is frivolous because

we lack jurisdiction to review any aspect of Portillo-Alvarez’s sentence, our

independent review of the record demonstrates he is nevertheless correct in

asserting this appeal is frivolous. The district court imposed a sentence of forty-

six months, a sentence at the bottom of the properly calculated advisory

Guidelines range. Accordingly, the sentence is presumptively reasonable. United

       2
        Albeit for a different reason than identified by counsel in his Anders brief,
the record does reveal a potential appellate claim over which this court lacks
jurisdiction. Portillo-Alvarez could potentially lodge a challenge to the district
court’s refusal to grant him a downward departure pursuant to § 5K2.11. Even
after Booker, however, this court lacks jurisdiction to review a district court’s
discretionary decision to deny a downward departure. United States v. Chavez-
Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006). In any event, this court has
specifically held that § 5K2.11 departures are not allowed in illegal reentry cases
because the crime of illegal reentry is not a specific intent crime. United States v.
Hernandez-Baide, 392 F.3d 1153, 1157-58 (10th Cir. 2004), cert. granted &
judgment vacated by Hernandez-Baide v. United States, 544 U.S. 1015 (2005),
opinion reinstated by United States v. Hernandez-Baide, 146 F. App’x 302, 305
(10th Cir. 2005).

                                           -4-
States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). A conscientious review of

the record reveals no facts or circumstances that would render Portillo-Alvarez’s

forty-six-month sentence unreasonable in light of the other sentencing factors set

out in § 3553(a). See id. In particular, Portillo-Alvarez was arrested on the

periphery of a major narcotics bust under circumstances w hich are highly

suspicious. His instant arrest came a short thirteen months after he finished

serving his California state felony conviction for possession of a controlled

substance for sale and was deported to M exico. Furthermore, like the district

court, we conclude the circumstances surrounding the deaths of Portillo-Alvarez’s

family members do not mitigate his culpability for illegal reentry. As aptly noted

by the district court, the circumstances surrounding the deaths of Portillo-

Alvarez’s family members are equally susceptible to an inference of involvement

in the drug trade as they are to involvement in a simple land dispute. In any event,

as noted by the government at the sentencing hearing, there is nothing in the

record explaining why Portillo-Alvarez could not avoid these family issues by

simply relocating to a portion of M exico away from his family home. 3 In these

       3
        Recognizing the analytical distinctions between departures and variances,
it could nevertheless be argued, based on the analysis of departures in Hernandez-
Baide, that it would be improper for a district court to vary from the advisory
Guidelines range based solely on the defendant’s motivation for reentering the
United States.
              Section 1326(a) makes it a crime for any alien to reenter the
       United States, after being deported, without the express permission
       of the Attorney General. W e previously determined § 1326(a) is a
                                                                       (continued...)

                                         -5-
circumstances, the sentence imposed by the district court is most certainly

reasonable.

      The Supreme Court recently heard oral argument in two cases which may

call into question this court’s precedents which afford a presumption of



      3
       (...continued)
       regulatory measure with no express mens rea element or
       Congressional intent to include a mens rea element to be proven by
       the government for conviction. See United States v. M artinez-M orel,
       118 F.3d 710, 715-17 (10th Cir. 1997). Our determination is
       consistent with the Supreme Court’s conclusion that regulatory
       statutes, silent with respect to mens rea, “impose a form of strict
       liability,” and an inference “Congress did not intend to require proof
       of mens rea to establish an offense.” Id. at 716 (relying on Staples v.
       United States, 511 U.S. 600, 606 (1994)). Thus, a deported alien,
       who makes an unauthorized entry into this country, is arguably per
       se, or “strictly,” liable for such criminal conduct, regardless of the
       underlying motivation for such illegal entry. See id. at 715-16.
               Given our determination § 1326 requires no specific motive or
       intent, we join those circuits which have considered § 5K2.11 in
       application to § 1326 and held that because § 1326(a) is not a
       specific intent crime, an alien’s intent, motivation or reason for
       illegal entry into the country cannot serve as a basis for departure
       under § 5K2.11. It follows that because Congress excluded specific
       intent in imposing strict criminal liability under § 1326 for illegal
       reentry, specific intent should not serve to minimize the resulting
       sentence. To hold otherw ise would not only contravene Congress’s
       exclusion of specific intent in 8 U.S.C. § 1326, but its deterrence
       efforts towards those repeatedly crossing our borders in violation of
       this country’s immigration laws. Thus, while M s. Hernandez-Baide’s
       maternal motivation for illegally reentering the country is extremely
       compelling, we nevertheless hold, as a matter of law , that downward
       departures under § 5K2.11 cannot apply to those convicted under 8
       U.S.C. § 1326.
Hernandez-Baide, 392 F.3d at 1157-58 (footnote and citations omitted). Because
the district court’s sentence is reasonable without regard to this question, we
leave its resolution for another day.

                                         -6-
reasonableness to sentences falling within a properly calculated advisory

Guidelines range. See United States v. Rita, 177 F. App’x 357 (4th Cir.), cert.

granted, 127 S. Ct. 551 (2006) (N o. 06-5754); United States v. Claiborne, 439

F.3d 479 (8th Cir.), cert. granted, 127 S. Ct. 551 (2006) (No. 06-5168). Even

completely setting aside Kristl’s presumption of reasonableness, however, and

review ing Portillo-A lvarez’s sentence anew in light of the § 3553(a) factors, we

conclude the sentence imposed by the district court is reasonable in light of

Portillo-Alvarez’s criminal history and demonstrated propensity tow ard

recidivism.

      This court’s review of the record reveals no claims arguable on their merits.

W e therefore conclude Portillo-Alvarez’s appeal is wholly frivolous. Counsel’s

motion to withdraw is granted and this appeal is dismissed.

                                       ENTERED FOR THE COURT



                                       M ichael R. M urphy
                                       Circuit Judge




                                         -7-
