                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                      UNITED STATES CO URT O F APPEALS
                                                                October 10, 2007
                                                     Elisabeth A. Shumaker
                               TENTH CIRCUIT             Clerk of Court



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

          Plaintiff-Appellee,
                                                        No. 07-2006
 v.                                              (D.C. No. CR 05-2269 M V)
                                                         (D . N.M .)
 ROBERTO SANCHEZ-M ARIONI,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Roberto Sanchez-M arioni pled guilty to a one-count indictment charging

him with illegal re-entry 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 him to 41 months imprisonment, followed by two years of supervised

release. On appeal, M r. Sanchez-M arioni’s counsel filed an Anders brief and

moved to withdraw as counsel. See Anders v. California, 386 U.S. 738 (1967).


      *
         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order and judgment is not binding precedent except under the doctrines of law of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.
W e received no response from M r. Sanchez-M arioni, and the government also

declined to file a response. For the reasons set forth below, we discern no

meritorious issues for appeal, and we therefore grant the motion to withdraw and

dismiss the appeal.

                                       * * *

      M r. Sanchez-M arioni, a native of M exico, was apprehended near

Columbus, New M exico while attempting to enter the United States. According

to M r. Sanchez-M arioni, he did not intend to stay in the country but instead was

simply doing a favor for his niece by bringing her son from M exico to her in

Arizona. M r. Sanchez-M arioni was charged with one count of illegal re-entry

following deportation, in violation of 8 U.S.C. § 1326(a)(1)-(2). Because his

prior deportation was subsequent to a conviction for an aggravated felony, M r.

Sanchez-M arioni faced a possible prison sentence of up to 20 years, pursuant to 8

U.S.C. § 1326(b)(2). Though he originally pled not guilty, M r. Sanchez-M arioni

eventually changed his plea to guilty, and did so without a plea agreement.

      Pursuant to the advisory United States Sentencing Guidelines

(“Guidelines”), M r. Sanchez-M arioni’s conviction carried a base offense level of

8. See U.S.S.G. § 2L1.2(a). But because he had been deported following a felony

conviction for a crime of violence, the Guidelines recommended a 16-level

enhancement. See id. § 2L1.2(b)(1)(A). Subtracting 3 levels for acceptance of

responsibility, M r. Sanchez-M arioni’s final suggested offense level was 21.

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Additionally, because of his prior felony conviction, M r. Sanchez-M arioni was

classified at criminal history category level II. That offense level and criminal

history category produced a proposed Guidelines sentencing range of 41-51

months imprisonment with 2-3 years of supervised release.

      Prior to sentencing, M r. Sanchez-M arioni’s public defender filed a

sentencing memorandum asking for a downward variance to 21 months. The

memorandum argued that such a variance would be appropriate, pursuant to the

sentencing factors set out in 18 U.S.C. § 3553(a), given that M r. Sanchez-M arioni

re-entered into the United States only at the bidding of his niece, and that he

agreed to do so only out of concern for his nephew’s safety (the alternative

apparently was to send the boy to his mother with a “smuggler”). The

memorandum also pointed out that M r. Sanchez-M arioni never intended to stay in

the United States and that the nature of his re-entry was non-violent. In light of

these facts, the memorandum argued that a sentence of 21 months would best

serve the sentencing purposes outlined in 18 U.S.C. § 3553(a).

      A t the sentencing hearing, M r. Sanchez-M arioni spoke briefly on his own

behalf, and his counsel made a statement in support of a variance, echoing the

arguments of the sentencing memorandum. The district court acknowledged that

within-Guidelines sentences w ere only afforded a presumption of reasonableness

on appeal rather than at sentencing and that the district court “is required to

analyze every sentencing, and [that] the analysis must be a complete analysis.”

                                         -3-
Sentencing Transcript at 11-12. The court stated that it had “reviewed the

presentence report, the factual findings, and considered the guidelines

applications, as well as the factors in 3553(a)(1) through (7).” Id. at 13. The

court also stated that it had “considered the reasons for reentry” as presented by

the motion for a variance, but that “the background of the defendant, and his

violent criminal history, and the circumstances of the underlying conviction, are

all matters that, taken into consideration, justify and make appropriate the

guideline sentence in this case.” Id. at 12-13. As such, the district court chose

not to grant a downward variance, and instead imposed a sentence of 41 months

imprisonment – at the bottom of the Guidelines range.

                                        * * *

      Pursuant to the Supreme Court’s decision in Anders v. California, a court-

appointed defense counsel may “request permission to withdraw [from an appeal]

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) (citing Anders, 386 U.S. at 744). This process requires counsel to

       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 [c]ourt must then conduct
       a full examination of the record to determine w hether defendant’s
       claims are w holly 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.

Id. (citing Anders, 386 U.S. at 744).

                                         -4-
      In his Anders brief, counsel noted that this appeal would conceivably be

meritorious only if (1) the guilty plea w ere not voluntary; (2) the sentence w ere

unreasonable; or (3) M r. Sanchez-M arioni received ineffective assistance of

counsel. After conducting a full examination of the record, we agree with

counsel’s conclusion that no basis in law or fact exists for any of these arguments.

      A valid guilty plea must be knowingly, intelligently, and voluntarily made.

See United States v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998); see also Fed. R.

Crim. P. 11. The record indicates that the district court fulfilled the requirements

set out in Rule 11 and those announced in Gigot to ensure the validity of the plea.

See July 17, 2006, Plea M inute Sheet (indicating that the district court judge

verified a factual basis for the plea, questioned the defendant and confirmed that

he fully understood the charges against him and the consequences of the plea, and

otherw ise ensured that the plea was freely, voluntarily, and intelligently made).

M r. Sanchez-M arioni has failed to put forward any evidence or arguments that

would place the plea’s validity in doubt, and so any appeal on these grounds

would be frivolous.

      W e also fail to find any non-frivolous grounds for appeal as to the

reasonableness of the sentence. As counsel points out, the sentence that M r.

Sanchez-M arioni received was within the statutory range that he faced in pleading

guilty. The sentence also fell at the bottom of the Guidelines range; as such, w e

accord a presumption of reasonableness to the sentence. See Rita v. United

                                         -5-
States, 127 S. Ct. 2456, 2462-63 (2007). Bearing in mind the various sentencing

factors set forth by Congress in 18 U.S.C. § 3553(a), we find no evidence

indicating that the district court abused its discretion in any way in sentencing

M r. Sanchez-M arioni. The district court understood and acknowledged the non-

mandatory nature of the G uidelines, and it gave thorough consideration to M r.

Sanchez-M arioni’s argument for a downward variance. It explained its decision

to impose a sentence at the bottom of the G uidelines range in terms of the factors

under 18 U.S.C. § 3553(a), pointing out M r. Sanchez-M arioni’s “violent criminal

history, and the circumstances of the underlying conviction,” and it noted that it

had considered the defendant’s background and the nature of the re-entry offense.

W e can find no evidence indicating any possible grounds for appeal of this

sentence.

      Finally, we find no evidence on the record before us to indicate that M r.

Sanchez-M arioni received ineffective assistance of counsel. In any event, we

note that it would be more appropriate to bring such a claim in collateral

proceedings rather than on direct appeal so that M r. Sanchez-M arioni can proceed

with a record developed for that purpose. See United States v. Brooks, 438 F.3d

1231, 1242 (10th Cir. 2006) (“The vast majority of ineffective assistance of

counsel claims should be brought in collateral proceedings rather than on direct

appeal from a conviction.”); see also United States v. Galloway, 56 F.3d 1239,

1240 (10th Cir. 1995) (en banc).

                                         -6-
                                    * * *

      For the foregoing reasons, we grant counsel’s motion to withdraw and

dismiss the appeal.



                                     ENTERED FOR THE COURT



                                     Neil M . Gorsuch
                                     Circuit Judge




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