                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  January 17, 2013
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                            __________________________              Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 12-2091
 v.                                           (D.C. No. 2:12-CR-00246-JAP-1)
                                                          (D. N.M.)
 PEDRO ALCANTAR-AGUIRRE, JR.,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      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.



      Appellant Pedro Alcantar-Aguirre, Jr. pled guilty to one count of unlawful


      *
         This order and judgment is not binding precedent except under the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.
possession of ammunition by a convicted felon in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). The district court sentenced him to fifty-seven

months imprisonment–at the low end of the United States Sentencing Guidelines

(“Guidelines” or “U.S.S.G.”) range of fifty-seven to seventy-one months

imprisonment. Although Mr. Alcantar-Aguirre appeals his conviction and

sentence, his attorney has filed an Anders brief and a motion for permission to

withdraw as counsel. See Anders v. California, 386 U.S. 738, 744 (1967). For

the reasons set forth hereafter, we grant counsel’s motion to withdraw and dismiss

this appeal. Id.



                                  I. Background

      During a traffic stop, Mr. Alcantar-Aguirre admitted to a Las Cruces, New

Mexico police officer that he possessed a round of .22 caliber ammunition in his

shoe. In addition, an inventory search of the vehicle resulted in officers finding

twenty-four rounds of .22 caliber ammunition in the glove compartment and one

round of the same ammunition under the front passenger floorboard. In a post-

Miranda interview, Mr. Alcantar-Aguirre admitted he possessed several rounds of

.22 caliber ammunition in his pants pockets and had hidden the ammunition found

in the glove compartment and on the floorboard when the police officer pulled

him over for the traffic stop. He also admitted he was a convicted felon recently

released from prison.

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      Thereafter, Mr. Alcantar-Aguirre pled guilty, without the benefit of a plea

agreement, to unlawfully possessing ammunition by a convicted felon in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). A federal magistrate judge questioned

Mr. Alcantar-Aguirre on his age, physical and mental condition, and whether he

was under the influence of alcohol, drugs, or any medication; advised him of the

charges against him, his constitutional rights, and the possible consequences of

his guilty plea, including the maximum possible penalties associated with that

plea; and questioned him on whether he consulted and was satisfied with his

counsel’s representation. 1 After noting the factual predicate to sustain his plea

had been provided, and following allocution by Mr. Alcantar-Aguirre on the

elements of the charge against him, the magistrate found Mr. Alcantar-Aguirre

fully understood the charge against him; the terms of pleading guilty and the

consequences of his plea; and that his guilty plea was freely, voluntarily, and

intelligently made.

      1
          While neither counsel for Mr. Alcantar-Aguirre nor the government
provided a copy of the plea hearing transcript as part of the record on appeal, Mr.
Alcantar-Aguirre’s counsel provides representations as to the content of the
discussion at the plea hearing. Generally, “[w]hen the party asserting an issue
fails to provide a record sufficient for considering that issue, [this] court may
decline to consider it.” 10th Cir. R. 10.3(B). However, in this case, the absence
of the transcript of the plea hearing does not affect our disposition of Mr.
Alcantar-Aguirre’s appeal. This is because we assume his appellate counsel’s
representations with respect to the contents of the document are accurate,
especially in the absence of any objections by either the government or Mr.
Alcantar-Aguirre as to those representations. Nevertheless, counsel is reminded
that in any future filing, any relied-on and referenced portion of the record should
be designated and provided as part of the appeal record.

                                         -3-
      Following Mr. Alcantar-Aguirre’s guilty plea, a probation officer prepared

a presentence report calculating his sentence under the applicable 2011

Guidelines. The probation officer recommended a base offense level of twenty-

four, under U.S.S.G. § 2K2.1(a)(2), because Mr. Alcantar-Aguirre committed the

instant offense subsequent to at least two felony convictions for crimes of

violence and further recommended a three-level reduction for acceptance of

responsibility. The resulting offense level of twenty-one, together with his

criminal history category of IV, resulted in a sentencing range of fifty-seven to

seventy-one months imprisonment. In discussing any possible circumstances

warranting a departure, the probation officer stated she had considered a

departure under U.S.S.G. § 5H1.3 based on mental and emotional conditions

which might distinguish Mr. Alcantar-Aguirre’s characteristics from a typical

case. In discussing such a departure, the probation officer noted Mr. Alcantar-

Aguirre had been diagnosed with Attention Deficit Hyperactivity Disorder,

Oppositional Defiant Disorder, and Organic Brain Dysfunction from inhalant

abuse, and had been classified as Severely Disabled Mentally Ill. However, in

recommending that Mr. Alcantar-Aguirre’s mental and emotional conditions did

not distinguish him from the typical case for the purpose of qualifying for a

downward departure, the probation officer pointed out nothing indicated the

instant offense was a direct result of his mental health status, given he

demonstrated he knew possessing ammunition was wrong when he attempted to

                                          -4-
hide it. The probation officer also pointed out his extensive criminal history was

troubling and that he would receive the necessary mental health counseling

through the Federal Bureau of Prisons. Even though Mr. Alcantar-Aguirre

experienced a troubled childhood, the probation officer also explained that a

disadvantaged upbringing and lack of guidance as a youth are not considered

relevant grounds for a departure under U.S.S.G. § 5H1.12.



      Mr. Alcantar-Aguirre did not file any objections to the presentence report.

At the sentencing hearing, the district court adopted all of the factual statements

in the presentence report after Mr. Alcantar-Aguirre admitted all the statements of

fact were true and correct. The district court also stated it had considered the

information provided by Mr. Alcantar-Aguirre at his plea hearing, found he

knowingly, voluntarily, and intelligently entered his plea of guilty, and accepted

his guilty plea. It then sentenced him at the low end of the Guidelines range to

fifty-seven months imprisonment.



      Through his appointed federal public defender, who also represented him

before the district court, Mr. Alcantar-Aguirre filed a notice of appeal.

Thereafter, this court granted Mr. Alcantar-Aguirre’s motion for withdrawal of

counsel and appointed new counsel to represent him on appeal. Mr. Alcantar-

Aguirre’s appellate counsel has now filed an Anders appeal brief and motion to

                                         -5-
withdraw as counsel, explaining no meritorious issues exist on appeal. See

Anders, 386 U.S. at 744. In support, counsel points out that after an extensive

and conscientious review of the record on appeal he finds Mr. Alcantar-Aguirre’s

appeal “wholly frivolous.” Nevertheless, in an effort to provide “any potential

appealable issues,” counsel notes Mr. Alcantar-Aguirre has a longstanding history

of severe mental issues, as indicated in the presentence report, which could have

impacted his ability to make a deliberate and intelligent choice with regard to his

plea. He also notes the presentence report outlined Mr. Alcantar-Aguirre’s

troubling childhood and that while lack of guidance as a youth and a

disadvantaged upbringing are not relevant grounds warranting a departure, other

circuits have departed in cases where the circumstances were exceptionally cruel.

However, counsel also points to our decision in United States v. Browning, 252

F.3d 1153, 1160 (10th Cir. 2001), in which we recognized another court’s

persuasive effort in distinguishing cruel psychological and emotional abuse from

the type of generalized lack of guidance or neglect § 5H1.12 prohibits. Id. at

1160. However, we also held we lacked jurisdiction to review a sentencing

court’s refusal to depart downward except in the rare circumstance it states it does

not have authority to depart. See id. at 1160-61.



      Pursuant to the requirements in Anders, this court gave Mr. Alcantar-

Aguirre an opportunity to respond to his counsel’s Anders brief, which he failed

                                         -6-
to do. See 386 U.S. at 744. In addition, the government has filed a notice of its

intention not to file an answer brief in this appeal.



                                    II. Discussion

      As required by Anders, we have conducted a full examination of the record

before us. See id. While the record shows Mr. Alcantar-Aguirre suffers from

mental impairment, nothing in the record or the representations made to this court

indicate his guilty plea was not voluntarily, knowingly, and intelligently entered.

Indeed, both the federal magistrate judge and the district court, who were aware

of his mental impairment, found Mr. Alcantar-Aguirre voluntarily, knowingly,

and intelligently entered his guilty plea, and it is clear from the record that no

objection was raised with respect to this issue by Mr. Alcantar-Aguirre’s trial

counsel prior to, at the time of, or after his plea hearing. Moreover, while his

appellate counsel has raised the issue as a possible avenue for appeal, he has

nevertheless represented to this court that he conducted an extensive and

conscientious review of the record on appeal and found any appeal “wholly

frivolous.” In addition, as acknowledged by Mr. Alcantar-Aguirre’s counsel, a

lack of guidance as a youth and a disadvantaged upbringing are not considered

relevant grounds warranting a departure under the Guidelines, and we otherwise

lack jurisdiction to review a district court’s refusal to depart downward, except

where it states it does not have authority to depart, which is not the circumstance

                                          -7-
here. See Browning, 252 F.3d 1160-61.



      As to Mr. Alcantar-Aguirre’s sentence, we review it for procedural and

substantive reasonableness. See United States v. Kristl, 437 F.3d 1050, 1053-55

(10th Cir. 2006) (per curiam). Having made such a review, we find no

nonfrivolous basis for challenging the sentence imposed. Mr. Alcantar-Aguirre,

through his counsel, does not contend the district court improperly calculated his

Guidelines range of fifty-seven to seventy-one months incarceration. Further, the

district court sentenced him to fifty-seven months imprisonment, which is within

the advisory Guidelines range and entitled to a rebuttable presumption of

reasonableness. Id. Mr. Alcantar-Aguirre has not rebutted this presumption with

any nonfrivolous reason warranting a lower sentence. Id. While his counsel

implies his mental status and challenging childhood might warrant a variant

sentence, he has not shown, and nothing in the record suggests, Mr. Alcantar-

Aguirre’s circumstances are atypical for the purpose of a variant sentence under

the 18 U.S.C. § 3553(a) sentencing factors.




                                        -8-
                                 III. Conclusion

      For these reasons, no meritorious appellate issue exists. Accordingly, we

GRANT counsel’s motion to withdraw and DISMISS Mr. Alcantar-Aguirre’s

appeal.

                                     Entered by the Court:

                                     WADE BRORBY
                                     United States Circuit Judge




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