                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                      May 8, 2008
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 07-2073
 v.
                                               (D.C. No. 2:06-CR-1574-BB)
                                                         (D.N.M.)
 JOSE MANUEL MEDELLIN-
 MUNOZ,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


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


      Defendant-Appellant Jose Manuel Medellin-Munoz (“Medellin”) pled

guilty to a one-count information charging him with Reentry of a Deported Alien

Previously Convicted of an Aggravated Felony. See 8 U.S.C. § 1326(a)(1)-(2) &

(b)(2). The district court sentenced Medellin to a 41-month term of



      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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order and judgment is not binding precedent, except under the doctrines of law of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.
imprisonment. Medellin appeals, arguing that the sentence offends 18 U.S.C. §

3553(a)’s parsimony principle. 1 However, Medellin’s counsel filed a brief

averring that he was unable to unearth any support for Medellin’s position. See

Anders v. California, 386 U.S. 738 (1967). Having independently scrutinized the

record, we agree with Medellin’s counsel. We exercise jurisdiction under 28

U.S.C. § 1291 and affirm.

I.    Background

      U.S. Border Patrol agents apprehended Medellin, a Mexican citizen, during

a traffic stop near Deming, New Mexico, on April 19, 2006. Immigration records

revealed that Medellin had previously been deported as a consequence of a

Nevada state court conviction for Battery with Substantial Bodily Harm in

September 1998; moreover, Medellin had not been granted permission to re-enter

the United States. Accordingly, Medellin was detained for prosecution and

charged with a violation of 8 U.S.C. § 1326(a)(1)-(2), (b)(2). Medellin pled

guilty on July 24, 2006.

      The U.S. Probation Office prepared a presentence report (“PSR”). 2 In

accordance with U.S.S.G. § 2L1.2(a), the PSR set Medellin’s base offense level at



      1
        Title 18, section 3553(a) directs “[t]he court [to] impose a sentence
sufficient, but not greater than necessary, to comply with” the sentencing
objectives set forth therein.
      2
      The Probation Office used the 2005 edition of the United States
Sentencing Guidelines (“U.S.S.G.”).

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8, but added a 16-level enhancement because of his prior conviction for a violent

felony. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). 3 The PSR credited Medellin for

accepting responsibility for his crime of reentry. See U.S.S.G. § 3E1.1. In sum,

Medellin’s total offense level was 21. After tabulating Medellin’s prior

convictions and arrests, the Probation Office placed Medellin in criminal history

category II. Taken together with his offense level, this criminal history category

resulted in an advisory guideline sentencing range of 41 to 51 months in prison.

      At his sentencing hearing, Medellin assented both to the PSR’s statement of

facts and its calculation of his guideline range. Yet Medellin, through counsel,

argued that the court should vary downward from the guideline range because the

16-level enhancement overstated the seriousness of Medellin’s prior violent

felony. 4 The sentencing judge was skeptical: he noted that Medellin’s battery

conviction resulted from a situation where Medellin and two other men attacked a

security guard after he ejected them from a bar. The judge also alluded to the

PSR’s statement that the guard overheard the men discuss killing him so that he




      3
          In addition to the base offense level, the guidelines direct that “[i]f the
defendant previously was deported . . . after – (A) a conviction for a felony that is
. . . (ii) a crime of violence . . . increase by 16 levels.” U.S.S.G. § 2L1.2(b)(1).
      4
       Medellin’s counsel agreed that the battery conviction “fits within the
guideline definition of crime of violence.” Nevertheless, he argued for a
downward variance on the ground that the guidelines’ definition of “crime of
violence” is broad and Medellin’s crime was relatively less severe than other
violent crimes.

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could not identify them. Lastly, the judge referred to the PSR’s statement that

Medellin had later threatened the guard with harm if he testified.

      Before imposing sentence, the court noted that it had reviewed the PSR’s

factual findings, the guidelines, the parties’ briefs, and the 18 U.S.C. § 3553(a)

factors. In light of those inputs, the judge stated:

      The Court notes that defendant reentered the United States after having
      previously been deported subsequent to an aggravated felony conviction
      for battery, substantial bodily harm. And reflecting on the 3553 factors,
      this is a serious offense. In order to provide adequate deterrence, given
      the defendant’s prior arrest for a similar offense and [to] protect the
      public from further crimes, it is my opinion that the guideline sentence
      is appropriate in this case.

The court then imposed a sentence of 41 months, at the bottom end of the

advisory guideline range. Given the opportunity, neither the government nor

Medellin’s counsel offered any further objections.

II.   Discussion

      Medellin’s counsel filed an Anders brief, thereby triggering our duty to

conduct independently a “full examination of all the proceeding[s] to decide

whether the case is wholly frivolous.” United States v. Snitz, 342 F.3d 1154,

1158 (10th Cir. 2003) (quotations omitted). Having done so, we conclude that

Medellin lacks any meritorious reason to challenge his sentence.

      We review a sentence imposed by the district court for its

“reasonableness.” United States v. Booker, 543 U.S. 220, 261-62 (2005); United

States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). As such, we set aside a

                                         -4-
sentence “only if it is procedurally or substantively unreasonable.” United States

v. Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007). We presume the sentence is

reasonable if it falls within the advisory sentencing guidelines range. Kristl, 437

F.3d at 1054. Cf. Rita v. United States, 127 S. Ct. 2456, 2465-67 (2007).

      A sentence is procedurally reasonable if it “reflects the sentencing court’s

calculation of the applicable advisory Guidelines range and its application of the

§ 3553(a) factors.” Geiner, 498 F.3d at 1107; United States v. Lopez-Flores, 444

F.3d 1218, 1220 (10th Cir. 2006), cert. denied, 127 S Ct. 3043 (2007) (stating that

procedural reasonableness aspect centers on the method by which the court

calculated the sentence).

      At sentencing, Medellin’s counsel conceded that the PSR accurately stated

the pertinent facts and correctly calculated the advisory guideline range. “[W]here

a defendant raises no contemporaneous objection to the court’s” method for

calculating the sentence, “we may reverse the district court’s judgment only in the

presence of plain error.” United States v. Cereceres-Zavala, 499 F.3d 1211, 1217

(10th Cir. 2007); United States v. Romero, 491 F.3d 1173, 1177 (10th Cir. 2007),

cert. denied, 128 S. Ct. 319 (2007). A plain error is present “only when there is

(1) error, (2) that is plain, (3) which affects substantial rights, and (4) which

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Romero, 491 F.3d at 1178.




                                          -5-
      Medellin’s counsel dutifully acknowledged in his Anders brief that no non-

frivolous grounds exist to challenge the procedural reasonableness of Medellin’s

sentence. And our review of the record revealed no procedural error. Without

error there is no plain error. We may turn now to the substantive prong of our

reasonableness analysis.

      “A substantively reasonable sentence ultimately reflects the gravity of the

crime and the § 3553(a) factors as applied to the case.” United States v. Atencio,

476 F.3d 1099, 1102 (10th Cir. 2007). Thus, we must simply inquire whether the

“sentence is reasonable in light of the factors set forth in 18 U.S.C. § 3553(a).”

United States v. Sanchez-Juarez, 446 F.3d 1109, 1114 (10th Cir. 2006). Fulfilling

our obligation under Anders, we conclude that Medellin cannot offer any

colorable argument that his sentence is substantively unreasonable.

      During the attack on the security guard, Medellin and two other men

punched and kicked the man and also beat him with his baton. They also

apparently considered killing the security guard to silence him. Thereafter, they

repeatedly menaced him with threats of retaliation. As the sentencing court

noted, the Nevada battery conviction was a “serious offense” mandating a

sentence that would deter subsequent conduct of the same sort and, in the

meantime, protect the public. Moreover, the Probation Office asserted that “there

are no circumstances that take the defendant’s case away from the heartland of




                                        -6-
similarly situated defendants.” We have identified nothing in the record that

persuades us otherwise.



III.   Conclusion

         For the foregoing reasons, we AFFIRM Medellin’s sentence and GRANT

his counsel’s motion to withdraw.


                                      ENTERED FOR THE COURT



                                      David M. Ebel
                                      Circuit Judge




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